2023 (1) TMI 453

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....n is accordingly allowed. 2. Let the necessary amendment be carried out in the writ petition as per the schedule to the application. OTAPL No.8 of 2015 3. The appeal by the Department arises from an order dated 11^th June, 2015 of the Customs, Excise and Service Tax Appellate Tribunal (CESTAT), Eastern Zone Bench, Kolkata disposing of Excise Appeal No.E-877 of 2011 filed by the Respondent-Assessee, i.e., M/s. Brahmani River Pellets Limited (BRPL). 4. The two questions urged by the Appellant Department for consideration by this Court read as under: (i) Is the Tribunal correct in granting relief by way of completely waiving the penalty by ignoring the fact that the offence of taking CENVAT Credit irregularly attracts pena....

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....rder dated 30th June 2011, the CENVAT Credit to the above extent was disallowed. Further, a penalty of Rs.2 crores under Rule 15(1) of the CENVAT Credit Rules was imposed. 7. BRPL then went in appeal to the CESTAT, which by the impugned order dated 11th June, 2015 held as under: "5.xxx xxx xxx (i) CENVAT Credit would be admissible on the input service, if any, used in bringing the input viz., Iron Ore Concentrate in slurry form through pipeline from Barbil Plant to Jajpur Plant during the said period. The adjudicating authority is to ascertain the quantum of CENVAT Credit involved on the procurement of the input and allow the same; (ii) The new plea of the Appellant before the Ld. CESTAT that they had only avai....

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....e possible for the Department to ascertain if CENVAT Credit was wrongly claimed. This is one of the essential conditions for attracting the penalty under Rule 15(1) of the CENVAT Credit Rules. 11. Consequently, the answer to question (i) viz., whether penalty under Rule 15(1) of the CENVAT Credit Rules would stand attracted automatically would hinge upon the finding of wrongful availment of CENVAT Credit. The question therefore at this stage would be premature. 12. It may be added that it is the contention of the Assessee that there is some element of discretion available in the adjudicating officer to levy penalty under Rule 15(1) of the CENVAT Credit Rules. The Court notes at this stage that there is a distinction between the Rule 1....