TaxTMI 
TaxTMI 
2013 (6) TMI 687
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....issued show cause notice on the ground that during course of audit, the audit party observed that the applicant has not paid proportionate Cenvat credit on breakages of glass bottles after RG-I stage at stores and the applicant was showing breakages of glass bottles in RG-I register and ER-I returns. Subsequently, the original authority passed impugned Order-in-Original confirming demand of duty with interest and also imposed penalty of amount equal to duty i.e. of Rs. 37,600/-. 3. Being aggrieved by the said Order-in-Original, applicant filed appeal before Commissioner (Appeals), who vide impugned Order-in-Appeal upheld the order of confirmation of demand of duty but reduced the quantum penalty from Rs. 37,650/- to Rs. 33,232/-. ....
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....from the facts that the applicant made any wilful suppression, misstatements from or any collusion with intent to evade duty, extended period is not applicable in this case. Since there is no such ingredients with intent to evade duty, the equal penalty under Section 11AC of Central Excise Act, 1944 and Rule 15(1) and (2) of Cenvat Credit Rules, 2004 is not imposable as well established by the law. This has been pronounced by the Hon'ble Supreme Court in the case of M/s. Rainbow Industries v. CCE - 1994 (74) E.L.T. 3 (S.C.). Same view has been followed in Tamil Nadu Housing Board v. CCE - 1994 (74) E.L.T. 9 (S.C.). In this case it was held that the powers to extend period from one year to 5 years are exceptional powers and have to be constr....
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....the quantum of penalty to Rs. 33,232/- from Rs. 37,650/-. Now, the applicant has filed this revision application on grounds mentioned in para (4) above. 8. The applicant has contended that they have duly shown the breakage of glass bottles/pet bottles of aerated water in their RG-I register and ER-I monthly returns; that various audit parties of Central Excise department conducted audit at different period from May, 2004 to September, 2009, but no audit party point out reversal of Cenvat credit involved in such breakage bottles and hence, the extended period of five years cannot be involved, as there is no allegation of fraud, collusion, suppression of facts or misdeclaration. 8.1 Government observes that the original author....
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....icant has undisputedly declared/mentioned breakage of bottles in their RG-I register and ER-I monthly returns. They further stated that many audit parties of Central Excise department conducted audit from 2004 to 2009 of their record and nobody pointed out any evasion by way of non-reversal of Cenvat credit as alleged by the department in this case. Under such circumstances, Government finds that when the breakage of bottle by applicant has been declared in their excise record and their verification by such records by various excise audit teams is undisputed, there can be no reason to allege collusion, fraud, misdeclaration or suppression of fact by the applicant. Hence, given the fact and circumstances of this specific case, extended perio....
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....e limit of 0.5% as claimed by the assessee or in other words the benefit of duty exemption in respect of glass/pet bottles as per Board's instructions vide F. No. 1D/3/70-CX. 8, as amended vide letter F. No. 261/1D/1/75-CX. 9, dated 17-9-1975 were further clarified in C.B.E.& C.'s Circular No. 930/20/2010-CX, dated 9-7-2010 as follows : "The instructions mentioned above (i.e., Boards circular referred above) were issued primarily. In the context of use of glass bottles. At the relevant time, the scheme of Modvat/Cenvat credit was not available to the assessee and therefore, there was no issue of reversal of credit taken on bottles, which were subsequently broken/destroyed. After the introduction of MODVAT and subsequent placement of the ....
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....he Circular No. 800/33/2004-Cx., dated 1-10-2004. In view of the above instructions of Government, the assessee is not entitled to avail the credit on broken or damaged glass bottles/pet bottles at whatever stage they lie in the factory. Hence I am not considering the case laws referred by the assessee in support of their claim. The order-in-appeal on the revision application of M/s. Hindustan Coca Cola Beverages (P) Ltd., cited by the assessee is also not considerable after the issue of Board's Circular No. 930/20/2010-CX., dated 9-7-2010." 8.4 Government notes the C.B.E. & C. circular, dated 9-7-2010 has clearly stipulated that Cenvat credit availed on inputs is required to be reversed as per Circular No. 800/33/04-Cx., dated 1-10....