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Judgment
Ashok Jindal, Member (J)
The Revenue is in appeal against the impugned order wherein the ld. adjudicating authority has passed the following order: -
(i) I confirm the demand of duty of Rs. 7,43,28,193/- (Rupees Seven Crore Forty Three Lakh Twenty Eight Thousand One Hundred and Ninety Three) only against the Noticee. The amount of Rs. 6,62,65,093/- (Rupees Six Crore Sixty Two Lakh Sixty Five Thousand and Ninety Three)only already paid by the noticee from PLA, is appropriated/adjusted against the duty confirmed. I order for recovery of the amount of duty of Rs. 38,44,966/- (paid from Cenvat Credit) from the Noticee from PLA, under Section IIA of the Central Excise Act, 1944. The amount of Rs. 42,18,134/-which was neither paid from PLA nor from Cenvat Credit and remained outstanding is to be recovered under Rule 8(4) of the Rules read with Section 11 of the Act.
(ii) Interest at the appropriate rate is ordered to be recovered from them under erstwhile Section 11AB (now Section 11AA) of the Central Excise Act, 1944 relatable to each clearance from May,2007 to July 2010, till the payment of all outstanding dues including interest. I order for appropriation of the interest of Rs. 12,57,608/- already paid by the Noticee.
(iii) Penalty of Rs. 80,63,100/- only is imposed on the Noticee under Rule 25(1) (a) of the Rules subject to provisions of Section 11AC of the Act.
(iv) The proposal for confiscation of goods cleared during the period of default from is dropped, in view of the fact that the excisable goods are not physically available.
The facts of the case are that during the course of audit, it was found that during the period from May, 2007 to March, 2008, the respondent had defaulted in making the payment beyond thirty days from the due date of payment. This default continued till July, 2010. Therefore, it was found that for the period from May 2007 to July, 2010, the respondent had cleared sponge iron of the value of Rs.58,55,77,891/-involving Excise Duty of Rs.7,43,28,193/-. Out of the said amount, Rs.6,62,65,093/- was paid from the PLA, Rs.38,44,966/- was discharged by utilizing CENVAT Credit and the balance amount of Rs.42,18,134/-remained unpaid. Therefore, as per Rule 8(3A) of the Central Excise Rules, 2002, it was proposed that the respondent had defaulted in making payment in time and the respondent was not entitled to utilize the CENVAT Credit account for payment of duty; they had to pay duty during the defaulted period consignment-wise.
A Show Cause Notice was issued to the respondent to that effect to deny the utilization of their CENVAT Credit account, of Rs.38,44,966/- and therefore to demand duty which has been defaulted, of Rs.42,18,134/- along with interest and penalty, to be imposed under Rule 25 of the Central Excise Rules, 2002 read with Section 11AC of the Central Excise Act, 1944.
The matter was adjudicated and the total demand proposed in the Show Cause Notice of Rs.80,63,100/- was confirmed along with interest and penalty of an equivalent amount was also imposed under Rule 25(1)(a) of the Central Excise Rules, 2002 read with Section 11AC of the Central Excise Act, 1944. Against the said order, the Revenue is in appeal on the ground that the ld. adjudicating authority should have imposed a penalty of Rs.7,43,28,193/-since during the impugned period, the said demand was payable by the respondent.
Heard the Ld. Authorized Representative appearing on behalf of the appellant-Revenue and perused the record.
We find that in the Show Cause Notice, there is no proposal to impose penalty of Rs.7,43,28,193/-. The Show Cause Notice has not even demanded the said amount as duty from the respondent.
In these circumstances, the appeal filed by the Revenue is not maintainable before this Tribunal since the appeal has been filed in a cyclostyled manner without appreciating the facts of the case and without examining the impugned order.
Accordingly, the appeal filed by the Revenue is dismissed.