COMMISSIONER, CENTRAL EXCISE Vs. CHETNA CEMENT PVT. LTD.

JUDGEMENT

(1.) HEARD the learned SDR. The respondents are called absent.

(2.) IN the instant case, the respondents have availed Cenvat Credit on capital goods and at the same time also claimed depreciation under the provisions of Section 32 of Income -tax Act. On being pointed out, on the scrutiny of the records, the respondents have reversed the amount of Rs. 3,56,417/ - vide RG -23C Part -II on 13.5.2001. A show cause notice was issued to the assessee for recovery of the same under the erstwhile Rule 57AC(4) of Central Excise Rules, 1944 (presently provided in Rule 4(4) of Cenvat Credit Rules, 2002) and rendered themselves for recovery under the provisions of erstwhile Rule 57U of Central Excise Rules, 1944 (presently provided in Rule 12 of Cenvat Credit Rules, 2002) read with Section 11A of the Act. On adjudication of the show cause notice by the Assistant Commissioner of Central Excise & Customs, Jalgaon has appropriated the demand of Rs. 3,56,717/ - against the payments made by the assessee under Rule 12 of Cenvat Credit Rules and also imposed penalty of Rs. 36,000/ - under Rule 13 of Cenvat Credit Rules, 2002. Aggrieved by the said order, the assessee have preferred an appeal before the Commissioner (Appeals), Nashik for setting aside the penalty amount on the ground of limitation in belated issue of show cause notice and their bonafide act in prompt reversal of Cenvat credit availed. It appears that the department has filed a separate appeal before the Commissioner (Appeals) for less imposition of penalty by the adjudication authority. It was also dismissed by the Commissioner (Appeals) vide order dated 28.3.2005. In the appeal filed by the assessee, the penalty amount is reduced to Rs. 9000/ - (nine thousand) for which the department has been aggrieved and filed this appeal. There is no appeal filed by the department against the order dated 28.3.2005 of the Commissioner (Appeals).

(3.) THE ground urged before me is that the Commissioner (Appeals) has not considered the provisions under Section 11AC of the Act in imposing equivalent amount of penalty basing on the decision in the case of Sony India Ltd. v. CCE, Delhi . The impugned order shows very much that the Commissioner (Appeals) has taken into consideration the aforesaid decision. Further, the Commissioner (Appeals) has also taken into consideration the Board's Circular No. 801/34/2004 -CX., dated 19.11.2004 and opined that imposition of penalty by the adjudicating authority is on high side and needs to be reduced. Considering the other mitigating circumstances, the Commissioner (Appeals) reduced to Rs. 9,000/ - as penalty. It is seen form the impugned order that there is no specific finding on the bar of limitation. He has observed that the show cause notice proposed to appropriate the amount of Cenvat, wrongly availed by the appellants, which they have already reversed on pointing out by the department and proposed to impose penalty. Thus, there is no question of demand of duty in the matter except the imposition of penalty only.