TaxTMI 
TaxTMI 
2017 (5) TMI 180
X X X X Extracts X X X X
X X X X Extracts X X X X
....9,519/- paid through PLA) and Rs. 1,78,157/- (out of Rs. 4,00,332/- paid through RG 23 Account). Assessee did not press claim for refund of balance amount of Rs. 2,26,060 [Rs.13,03,646 (-) Rs. 10,77,586] and Rs. 2,38,047 [Rs.4,16,204 (-) Rs. 1,77,157] respectively. In other words, no refund was claimed for Rs. 4,64,107. Department issued SCNs dt. 16.02.2000 (read with corrigendum dt. 23.02.2000) and another SCN dt. 15.02.2000 proposing to reject part of the refund claims preferred and restricting the eligibility of refund to Rs. 2,02,815/- and Rs. 28,199/- respectively. These proposals were confirmed by the original authority. Both department and the assessee filed appeals to the Commissioner (Appeals) against the orders in refund proceedings. The Commissioner (Appeals) vide a common OIA No.57 & 58/2002 dt. 1.3.2002 and No.54 & 55/2002 dt. 28.2.2002 allowed the assessee's appeal and rejected those of the department. The department appealed against these orders of Commissioner (Appeals) which were registered as E/279/2002 and E/278/2002. 2. While these proceedings were going on, assessee had further paid up an amount of Rs. 9,38,557/- bringing the total amount paid by them to....
X X X X Extracts X X X X
X X X X Extracts X X X X
....claims were issued in February, 2000 and that the show-cause notice in question was issued by Commissioner in December, 2000. The time gap between them is too small for the assessee to plead limitation on the strength of the cited decision of the apex court. Further, on merits, we have not found the requisite correlation between the credit of Rs. 14,12,184/- and the inputs said to have been received in the factory and used in, or in relation to, the manufacture of the final products during the material period. The appellants do not seem to have made out a case against the demand of duty of Rs. 14,12,184/-. Credit of this amount, already reversed by the assesse in the relevant accounts, cannot, therefore be allowed to be recredited or refunded. In the result, demand of duty to the extent of Rs. 14,12,184/- shall stand sustained. 6. We have already found that the above credit of Rs. 14,12,184/- was reversed in the relevant accounts. This happened long before issue of the show-cause notice. It is settled law that, where duty was paid before show-cause notice, there is no question of imposition of any penalty under Section 11AC of the Central Excise Act. The penalty in the pre....
X X X X Extracts X X X X
X X X X Extracts X X X X
....enue's appeals after enjoying the fun arising therefrom. The department issue two show-cause notices, each of which proposed to reject partly a refund claim of the assessee. The assessee's objections to this proposal were rejected and the Assistant Commissioner upheld the department's proposal. In the result, the refund claims filed by the assessee were stood partly rejected as proposed in the respective show-cause notices. Against the Orders-in-Original, the assessee had a grievance and the Revenue had none. The assessee filed appeals and the same were allowed on merits by the Commissioner (Appeals). The Revenue also filed appeals against the Orders-in-Original even in the absence of grievance and the appellate authority rightly rejected those appeals. The Revenue however, chose to perpetuate the fun by filing further appeal with the Tribunal and there are Appeal Nos.E/278 & 279/2002, which we dismiss." 9.2 We find that there is absolutely no reason given by the Tribunal as to why Appeal Nos.E/278 & 279/2002 were dismissed. It is a cursory order. As the order passed by the Tribunal in Appeal Nos. E/278 & 279/2002, is bereft of reasons and analysis, the same is....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... by original authority. viii) Demand has been confirmed for the period April 1995 to March 2000 and penalty of Rs. 25 lakhs has been imposed; that only from 1.18.1996 vide Notification No.14/96-CE (NT) dt. 23.07.1996 amendment to certain rules of the erstwhile Central Excise Rules, 1944 was effected, inter alia, liability to pay penalty was brought in as sub-rule (4) of Rule 57I ibid. Similar amendment was brought from same date to Rule 57U, by addition of a sub rule (5). ix) During the period of dispute, issue in contention should have been reconciled when sub-rule (2) of Rule 57I as it stood during the relevant period and since they had discharged the amount demanded much before issue of the SCN. Hence sub-rule (3) and sub-rule (4) will not be attracted in their case and neither interest nor penalty would be liable on them. 10. On the other hand, Ld. A.R Shri A. Cletus (ADC), for the Revenue, submits that : i) In the impugned orders of the Commissioner (Appeals) dt. 1.3.2002 and 28.2.2002 while allowing the appeals of the assessee, Commissioner (Appeals) has not gone into the aspects of whether the credits corresponding to the goods taken out had bee....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ods were taken out, input credit taken has to be reversed and that has not been done. These facts were not in the knowledge of department. As per allegations in the SCN, assessees have removed inputs and capital goods from the factory without reversing modvat credit on the capital goods retained in the factory but became obsolete. It appears that these removals/retention have been intentionally done with purpose to benefit from non-reversal of modvat credit. This action on their has not been brought out to the knowledge of the department and hence would amount to suppression. viii) In respect of the refund claims, assessee did not produce the requisite evidences to support their claim which has been recorded in the order by the refund sanctioning authority. Commissioner (Appeals) while allowing the appeals against these orders, has not listed out all such documents and has made observation that supporting documents for the refund claim are very much large in number and however range officials were absolutely aware of the systems and whole documents must have been verified in regular visit by range officers. This, according to Ld. A.R is a vague, unsubstantiated conclusion.....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ted into a conclusion that they have indulged in any suppression for evasion of payment of duty of entire demand. 12. Heard both sides and have gone through the facts of the case. 13. These appeals are of 2002 vintage, coming up before the Tribunal for the second time. While they have thus made such a long journey, the core issue is in a very small compass, namely whether removal of inputs/capital goods or for that matter inputs/capital goods which were removed from the factory by assessee, had been done on reversal of modvat credits as liable and whether in respect of other impugned goods, they had indeed been released for manufacturing process or otherwise lying unused in the factory premises for reasons of obsoleteness. 13.1 The other pertinent fact to be kept in mind in these appeals is that Appeal Nos.E/278-279/2002 though emanating from refund claims and assessee's appeal E/68/2002 though emanating from demand of irregularly availed modvat credit, both owe their birth to the selective audits conducted by the department. Two audits were conducted, one for the period April 1997 to March 1998 and another for April 1995 to March 2000. Assessee's contention is tha....