2017 (2) TMI 432

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....also availing credit of Central Excise duty under the provisions of Cenvat Credit Rules, 2004. During the course of audit of the records of the appellants, it was observed that they have availed double Cenvat Credit on input services, totaling to Rs. 5,72,194/- in contravention of the provisions of Rule 3, Rule 4 and Rule 9 of the Cenvat Credit Rules (CCR), 2004. The appellants were alleged to have willfully suppressed the fact of double availment of Cenvat credit from the department with an intent to evade duty and hence proviso to Section 11A(1)of the Central Excise Act, 1944, read with Rule 14 of the Cenvat Credit rules, 2004 was invoked in the instant case. 3. In his statement, Sh. Pramod Manohar Kulkarni, AGM (Accounts and Administrat....

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....ER-1 cannot be taken as an indicator of intention to suppress. He relied upon following case laws:- 1. CCE Vs. Guarniflon India - 2013 (293) ELT 703 (T) 2. Krishna Electrical Industries - 2013 (292) ELT 385 (T) 3. Panasonic AVC Networks - 2012 (280) ELT 297 (T) 4. Machino Basell India - 2011 (273) ELT 53 (P & H) 5. Bostik India Pvt. Ltd. - 2013 (294) ELT 118 (T) 6. Lands + GYR Ltd. - 2013 (290) ELT 447 (T) 7. Astral Pharma Ltd. - 2013 (30) STR 397 (T) 8. Continental Foundation JT. Venture Vs. CCE, Chandigarh-I - 2007 (216) E.L.T. 177 (S.C.) 9. Pahwa Chemicals Private Limited Vs. CCE, Delhi - 2005 (189) E.L.T. 257 (S.C.) 7. The Ld. AR argued that in the regime of self-assessment, the onus was on the assessee to act in a bonafide ma....

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....1958 PH 250. 8. Heard the parties and perused the records. 9. The only question to be decided in this case is whether the appellants are liable to penalty for availing the Cenvat Credit twice. It is not disputed that the appellants had availed the credit on the basis of the same documents two times, firstly in October, 2006 to March, 2007 and again during April, 2008 to September, 2008. It is also not disputed that the appellants did not reverse double credit till it was pointed out by the Audit. The question is whether there was an intention to evade payment of Central Excise by way of suppression or not. 10. I find that the explanation given by Sh. Pramod Manohar Kulkarni, AGM (Accounts and Administration) that it was due to oversight ....

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....e appellant have signed reads as follows:- "(a) I/We declare that the above particulars are in accordance with the records and books maintained by me/us and are correctly stated. (b) I/WE have assessed and paid the Service Tax and/or availed and distributed CENVAT Credit correctly as per the provisions of the Finance Act, 1994 and the rules made thereunder. (c) I/We have paid duty within the specified time limit and in case of delay, I/WE have deposited the interest leviable thereon." I find that the declaration (b) of the Self Assessment Memorandum is incorrect as they have not taken the credit as per law. This fact has not been disputed by them. Furthermore, in the era of self assessment, the onus of taking credit correctly has bee....