JUDGMENT
Gowri Shankar,(T) Member
1. Appeal taken up for disposal after waiving deposit.
2. The appellant was engaged in the manufacture of plastic parts of electric batteries and in the course of such manufacture utilised the mould which had been loaned to it by Standard Batteries Ltd. who was to purchase the parts that it manufactured. Standard Batteries Ltd. had purchased these moulds from the manufacturer and took credit under Rule 57Q of the duty paid on these moulds by the manufacturers. It paid duty on these moulds as provided in Sub-rule (1) of Rule 57S before sending these moulds to the appellant The appellant in turn took credit under Rule 57Q of this duty paid by Standard Batteries.
3. It subsequently came to the notice of the appellant from the departmental authorities that Standard Batteries Ltd. had also claimed depreciation for purpose of income tax of that part of the cost of the mould which represented the duty on them. Therefore by operation of the provision of 57T(2) it could not have taken credit under 57Q of the duty paid on them. It thereupon debited the credit that it had taken on 4.3.1998. Notice issued to it on 20.7.98 proposed to regularise such abatement and in addition to imposed penalty under Rule 57U(6) for incorrectly availing of credit. The Additional Commissioner held that the appellant had wrongly taken credit which has been set right by such reversal and imposed penalty of Rs. 2 lakhs. On appeal from this order, the Commissioner (Appeals) reduced this amount to Rs. 1 lakh. Hence this appeal.
4. The appeal is limited to the imposition of penalty on the appellant and does not seek to question the Commissioner (Appeals)’s order confirming the denial of the credit that was taken. Counsel for the appellant contends mat it had no means of knowing that Standard Batteries Ltd. was not entitled to initially take credit under 57Q. The appellant thus believed that credit had been rightly taken and therefore proceeded to take credit of the amount paid by Standard Batteries under Rule 57S(1). The Additional Commissioner has in fact accepted that the appellant could not have been aware of incorrect taking of credit by Standard Batteries Ltd. and therefore the provision of Rule 57U(6) and (8) would not apply. He however concluded that the appellant has not taken reasonable steps to ensure that
credit could be taken by it and therefore he imposed penalty under 173Q(1)(bb). The notice did not cite this provision. Further, the appellant had no means of knowing that Standard Inds. was not entitled to the credit.
5. The departmental representative contends that failure to cite the provision of 173Q does not vitiate the proceedings and relies in support the proposition of the judgment of the Ld. Single judge of the Punjab & Haryana High Court in Achhar Singh v. Dy. Collector of Customs & Central Excise 1983 ELT 671 and the decision of the Tribunal in G. Jayakannan v. CCE 1988 (38) ELT 356. He says that penalty was rightly imposable on them.
6. Rule 173Q(1)(bb) refers to liability for confiscation on manufacturer or producer under concern person and penalty in cases where he takes credit on inputs or on capital goods “wrongly or without taking reasonable steps to ensure that appropriate duty on the said inputs or capital goods has been paid as indicated in the invoice or any other document…” The credit that the appellant took was of the duty paid by Standard Batteries Ltd. under Rule 57S(1) (ii). There is no dispute that duty was paid by Standard Batteries Ltd. It is the initial taking of credit by Standard Batteries Ltd. under Rule 57T(6) that may perhaps be impermissible reason that the requirement contained in Rule 57T had not been complied with. I advisedly use the words “may perhaps”; the Additional Commissioner’s order does not show that Standard Batteries Ltd. has in law, by issue of an appropriate order has been found ineligible for taking credit. Whatever that position, so far as the appellant before me is concerned, the question of its taking reasonable steps would not arise in a situation where there is no dispute that the duly that it took as credit has been paid by Standard Batteries Ltd. Therefore, no penalty can be imposed on it.
7. The appeal is allowed and the impugned order set aside.