TaxTMI 
TaxTMI 
2011 (1) TMI 893
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....he Revenue initiated investigations against the applicant. 2.2 During investigations it was confirmed that the applicant had received local material instead of the M.S. Scrap shown as purchased in the said Central Excise Invoices from the said registered Dealers. The Applicant admitted that it received substituted material in place of the goods mentioned in the said Central Excise Invoices. The goods used as inputs, in fact, were local bazaar scrap where Central Excise duty was not paid. The applicant also admitted having knowledge that CENVAT credit was not available for manufacture of finished goods out of the local duty unpaid materials of the type of bazaar scrap. The applicant admitted that it availed of the said CENVAT credit which was not admissible. The said amount of inadmissible CENVAT credit was worked out to be Rs. 35,64,586/- . It was estimated that this amount of CENVAT Credit could have been utilized for payment of Central Excise duty on excisable finished goods having value of Rs. 2,18,41,826/- . The applicant voluntarily paid Rs. 35,59,167/- vide GAR-7 Challans dated 10-1-2008, 15-2-2008, 8-3-2008 and 31-3-2008 towards the said inadmissible CENVAT Credit. ....
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....im. 3.1 The applicant and the co-applicant approached the Settlement Commission on 21-9-2010 for settlement of their case by filing application under Section 32E of the Central Excise Act, 1944. The applicant has paid Rs. 35,59,167/- during investigations vide GAR-7 Challans dated 10-1-2008, 15-2-2008, 8-3-2008 and 31-3-2008 towards the said inadmissible CENVAT Credit demand. A further amount of Rs. 5,419/- has been paid by the applicant on 10-9-2010 towards the balance CENVAT Credit. Another amount of Rs. 4,05,988/- has been paid on 10-9-2010 towards the interest payable under Section 11AC of the Central Excise Act, 1944. Hence the applicant has paid the full amount of Rs. 35,64,586/- (35,59,167/- + 5,419/- = 35,64,586/-) as demanded in the said SCN dated 18-5-2010 along with interest. 3.2 In its application, the applicant prayed for admission and settlement of the case, grant of immunity from imposition of fine and penalty and from prosecution under the Central Excise Act, 1944 and the Rules made thereunder. The applicant has submitted that the fine is not imposable under Section 34 of the Central Excise Act, 1944 as the goods are already cleared and not available....
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....ncerned officer who was deputed to appear in the hearing was not available as he was out of station on an official work of urgent nature. Since, the report of the Revenue filed by it under Section 32F(3) of the Act, containing its submissions, was on record, the Bench decided to hear the applicant and decide the case. Accordingly the applicant was heard. 4.2 The ld. Advocate for the applicant at the outset submitted that the applicant fulfilled all the conditions as stipulated under Section 32F of the Act, and therefore, prayed for admission and final settlement of the case. The ld. Advocate further submitted that the applicant admitted the allegations in toto as mentioned in the said SCN dated 18-5-2010 and prayed for grant of full immunity from fine and penalty. He also prayed for grant of immunity from prosecution under the Act. Summing up his prayers the ld. Advocate submitted that in case the Bench did not find the applicants' case worth grant of total immunity on the counts of fine and penalty, leniency may be shown keeping in mind he co-operation extended by the applicant not only before the Bench but also before the Revenue during investigations. 4.3 On a qu....
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....te of hearing. However, in their report dated 18-11-2010, Revenue had confirmed that the applicant had deposited entire duty liability of Rs. 35,64,586/- alongwith interest of Rs. 4,05,988/- and that they had no objection for settlement of the case. Therefore, the Bench decided to hear the applicant on the date of hearing and settle the case. The Bench observes that there is no dispute about the amount of duty and the interest liability and the applicant has paid both, in full, as confirmed by the Revenue. The applicant has pleaded that he had imported a large number of consignments and only in respect of the subject 12 consignments, discrepancy was found and the subject SCN was issued. The material, scrap received from the market got mixed up with the scrap purchased from the dealers. That is why the Cenvat Credit got wrongly taken by them. The applicant has requested for giving immunity from fine, penalty and prosecution. The Revenue has opposed the immunity from fine, penalty etc. and have submitted that the applicant had indulged in fraudulent practices to defraud the Government by availing improper Cenvat credit. Therefore, penalty should be imposed on them. It is observ....