TaxTMI 
TaxTMI 
2024 (10) TMI 899
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.... during the period October, 2009 to September, 2010 (taken 100% instead of 50% on capital goods), under Section 75 of the Finance Act, 1994 read with Rule 14 of Cenvat Credit Rules, 2004 when it was not due to them. III. I also impose penalty of Rs.52,89,508/- upon them under Rule 15 of Cenvat Credit Rules, 2004 read with Section 78 of the Finance Act, 1994 for the aforesaid contravention. IV. I also impose a penalty of Rs.10,000/- upon them under Section 77(1)(b) of the Finance Act, 1994 for not maintaining the proper books of accounts. V. I also impose a penalty of Rs.10,000/- upon them under Section 77(1)(c) of the Finance Act, 1994 for not producing the documents on demand. VI. I do not impose any penalty under Section 77(2) of the Finance Act, 1994 as penalties were already imposed for the specific violations of the relevant Rules. 2.1 Appellant is a public sector undertaking engaged in providing telecom services. They are availing the benefit of Cenvat credit. 2.2 It was observed that in respect of certain capital goods Appellant have availed the Cenvat credit of total amount of duty paid in the first year itself. 2.3 As for the provision of the Cenvat Credit Rules....
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....y a penalty of equal amount under Section 78 of the Finance Act, 1994 read with Rule 15(3) of Cenvat Credit Rules, 2004. (ii) Party failed to maintain books of accounts in proper manner in as much they could not trace and provide ATDs related to F.Y. 2009-10 as submitted in their letter dated 09.04.2013. They admitted to have mentioned the 100% credit of duty by mistake instead of 50% and further submitted that they reversed the excess credit when pointed by the divisional Superintendent but could not provide the details of any reversal done by them. Party as big and responsible as BSNL cannot take excuse of not being able to maintaining proper books of accounts, not being able to produce the ATDs/invoices of the related periods on the basis of which the CENVAT credit has been taken and not having the knowledge of Law and Procedures appears not to be tenable. This act of the party renders them liable to Penalty under Section 77(1)(b) and Section 77(1)(c) of the Finance Act, 1994 for the aforesaid contraventions." 4.3 In case of Deewan Reclaim Rubber [2017 (350) E.L.T. 105 (Tri. - All.)] following has been held:- "6. So far as the 3rd issue is concerned, the same is regarding d....
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....e not required. In these circumstances, I dispose of the appeal of the appellant by confirming the demand of interest for the intervening period and setting aside the demand of duty and penalty against the appellant. 4.6 In case of Sanghi Industries [2013 (294) E.L.T. 303 (Tri. - Ahmd.)] Ahmedabad bench held as under: 2. I find that there is no dispute on facts. Admittedly, the appellants have availed the entire 100% Cenvat credit in the first year itself, whereas in terms of Rule 4(2) of Cenvat Credit Rules, 2004, they were required to avail 50% of the credit in the first year and balance 50% credit in the next financial year. However, the fact that they availed the entire 100% credit in the first year, will not make balance 50% as non-available to the appellant. Admittedly, the balance 50% credit was available in the next financial year. As such, the demand of duty cannot be confirmed on this account. 3. This brings me to the question of interest. The appellant having availed the entire 100% credit in the first year, whereas they were entitled to avail 50% credit, has resulted in excess availment of 50% of the credit. The said 50% credit was available to the appellant in t....
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.... I hold that imposition of penalty on the appellant in terms of Section 11AC was not called for. The same is, accordingly, set aside. 4.7 In case of Real Plastics [2009 (236) E.L.T. 121 (Tri. - Ahmd.)] Ahmedabad bench held as under: 2. The dispute relates to availment of Modvat credit in respect of capital goods received by the appellant during the year 2000-01. The appellant was required to take 50% of the credit in that year and the balance 50% in the next financial year that is as on 1-4-2001. As the appellant took the entire credit prior to 1-4-2001 and filed return with the Department, no objection was taken. Subsequently, as per audit objection on April, 2004, the above discrepancy was noticed and the appellant was directed to make reverse entries in 2004 and again took credit subsequently. Accordingly, the appellant reversed the credit on 23rd April, 2004 and took credit on the same the very day. Subsequently, proceedings were initiated by way of issuance of show cause notice on 23rd December, 2005 proposing confirmation of interest and imposition of penalty upon them. The said proceeding culminated into an order passed by the Deputy Commissioner vide which he confirmed ....
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....o interest liability as has been held in following cases:- * Commissioner of C. Ex., Delhi-III vs. Maruti Udyog Ltd. 2007 (214) E.L.T. 173 (P&H). * Rana Sugar Ltd. vs. Commissioner of C. Ex., Meerut-II 2010 (249) E.L.T. 247 (Tri.-Del.). * Commissioner Vs. Superfil Products - 2009 (237) E.L.T. 551 (Tribunal). * Pooja Forge Ltd. Vs. Commissioner - 2004 (177) E.L.T. 302 (Tribunal). 4.9 Taking note of the above judgements, we find no merits in the impugned order to the effect that credit is to be denied and penalties are to be imposed only liability that can arise upon the Appellant is payment of interest for the period in which excess credit was taken and that subject to verification that the credit was taken utilized by the Appellant for payment of duty. In case credit has not been utilized there would be no liability for interest as have been held by Hon'ble High Court of Karnataka in the case of Commissioner of Central Excise & Service Tax LTU, Bangalore vs. Bill Forge Pvt. Ltd. reported as 2012 (279) E.L.T. 209 (Kar.). 4.10 In case of Veetech Valves Pvt. Ltd. [2010 (261) E.L.T. 204 (Tri. - Bang.)] Bangalore bench held as under: 4. Learned DR would reiterate the grounds....