HIGH COURT OF JUDICATURE AT HYDERABAD FOR THE STATE OF TELANGANA AND THE STATE OF ANDHRA PRADESH PRESENT THE HON’BLE THE CHIEF JUSTICE SRI KALYAN JYOTI SENGUPTA AND THE HON’BLE SRI JUSTICE SANJAY KUMAR
CENTRAL EXCISE APPEAL No.125 OF 2014
DATED: 06.12.2014 Between:
Commissioner of Customs, Central Excise and Service Tax … Appellant And M/s.Infotech Enterprises Ltd … Respondent THE HON’BLE THE CHIEF JUSTICE SRI KALYAN JYOTI SENGUPTA AND THE HON’BLE SRI JUSTICE SANJAY KUMAR CENTRAL EXCISE APPEAL No.125 of 2014 JUDGMENT: (per the Hon’ble The Chief Justice Sri Kalyan Jyoti Sengupta) This appeal is sought to be preferred and admitted against the judgment and order dated 17.06.2014 passed by the Customs, Excise & Service Tax Appellate Tribunal in ST/20670/2014-DB on the following suggested questions of law.
(i) Whether Hon’ble CESTAT was correct in waiving penalty for the act of irregular availment of CENVAT credit by the assessee by invoking provisions of Section 80 of Finance Act, 1994 by overlooking the provisions of Rule 15(4) of Contempt Case Rules and Section 78 of the Finance Act?
(ii) Whether the Tribunal is correct in arriving at the conclusion that the assessee is eligible for waiver of penalty in terms of Section-80 of the Finance Act, 1994 for the willful act of the assessee?
Issue in this case is whether penalty is imposable or not.
We have heard the learned counsel for the appellant and gone through the judgment and order of the learned Tribunal.
In the impugned judgment, we notice that the learned Tribunal on appreciation of fact found that the assessee has been able to explain that penalty is not warranted on fact and law. In this connection, we just set out the fact finding of the learned Tribunal as under.
“We find that submission made by learned C.A. that there was no excess utilization at all during the relevant period is correct. Under these circumstances, what has happened is only an accounting error by the appellant and that mistake has been rectified by them by paying the entire amount with interest and correcting their account suitably. Such being the position, since the entire amount has been paid before issue of show cause notice and initiation of proceedings, the appellant need not be visited with penalty also. In any case having regard to the facts and circumstances, we are very clear that this is not a fit case for imposition of penalty at all.”
We are unable to take any venture to make further fact findings under the law. We see no element of law is involved.
The appeal is accordingly dismissed.
6th DECEMBER, 2014.
K.J. SENGUPTA, CJ SANJAY KUMAR, J
kvni