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Judgment
This is department's appeal against the impugned order whereby the department proposed imposition of penalty under Rule 15(4) as the suppression of fact has been confirmed by the Adjudicating Authority.
Shri T.G Rathod, Learned Additional Commissioner (AR) appearing on behalf of the revenue submits that there is apparent error in mentioning the Rule 15(2) whereas Rule 15(4) of Cenvat Credit Rules, 2004 should have been invoked according to which equal amount of service tax to be imposed as penalty under Rule 15(4). He submits that the Adjudicating Authority has elaborately discussed that there is suppression of fact on the part of the respondent. Accordingly, the penalty under Rule 15(4) of Cenvat Credit Rules should have been imposed. Therefore there is a clear error on the part of the Adjudicating Authority for not imposing penalty under Rule 15(4). He submits that merely because wrong Rule No. was mentioned, assessee cannot be exonerated from the penalty which is otherwise legally imposable in the present case under Rule 15(4). In support, he placed reliance on the following judgments:
Pradyumna Steel Ltd - 1996 (82) ELT 441 (SC)
Deccan Cements Ltd - 2002 (147) ELT 428 (Tri. Chennai)
Deccan Cements Ltd -2006 (199) ELT A44 (SC)
The Elphinstone Spinning & Weaving Mills Co Ltd- 1978 (2) ELT J399 (SC)
Supercom India Ltd - 2003 (160) ELT 69( Del)
Hytaisun Magnetic Ltd- 2008 (229) ELT 634 (Tri. Ahd)
Lanjekar Sales Corporation - 2007 (210) ELT 79 (Tri.Mum)
Jogani Tyres (India) - 2010 (255) ELT 264 (Tri.Mum)
Shaila Crown P Ltd - 2004 (175) ELT 571 (Tri. Del)
2.1 He also submits that against the same impugned order M/s BSNL's appeal No ST/307/2010 has been disposed of by way of remand to decide whether there is suppression of fact on the part of the appellant or not.
None appeared on behalf of the respondent despite notice.
We have carefully considered the submission made by both sides and perused the record. We agree with the submission of Learned AR. On going through the finding of the Adjudicating Authority it is clearly held that there is suppression of fact on the part of the assessee. Therefore, the correct rule for penalty to be invoked is Rule 15(4) of Cenvat Credit Rules, 2004 and not Rule 15(2). However, whether there is suppression of fact or otherwise the matter in the assessee's appeal No ST/307/2010 has been remanded to the Adjudicating Authority. Therefore, this matter also needs to be remanded to the Adjudicating Authority. Accordingly we dispose of the appeal of revenue by way of remand to the Adjudicating Authority to decide the matter of penalty along with the earlier remand matter made in appeal No ST/307/2010.
Appeal is disposed of by way of remand to the Adjudicating Authority.
(Dictated and pronounced in the open court)