Taking excess credit on 62 occasions cannot be said to be an inadvertent mistake on part of excise clerk - ROM dismissed
IN this case, the appellant had availed excess CENVAT credit - in some instances they had taken credit of the value of the goods received instead of the duty paid.
While dismissing the appeal , the Bench had observed -
"8. I find that the Annexure to the Show Cause Notice dated 19.05.2008 shows there are 54 instances where the appellant has taken excess credit. The total credit so availed is to the extent of Rs.9,17,866/- and in the Show Cause Notice dated 05.12.2007 there are four instances where the appellant availed credit to the extent of Rs.1,60,166/-. Further I find that the appellant had also utilized the credit. The excess credit utilized is to the extent of Rs.18,744/-. In view of the repeated action of the appellant of taking credit on the value of goods and not of the duty paid on the goods that too 62 times and also utilizing the excess credit for payment of duty, I find no merit in the contention of the appellant that it is a bona fide mistake. The repeated action of the appellant of taking excess credit deserves the penalty under section 11AC of the Central Excise Act."
Against this order, the appellant has filed an application for rectification of mistake. The prayer in the application is that excess availment of credit has happened due to an act of inadvertence by the excise clerk and was thus only a bona fide mistake and hence the applicants are not liable for any penalty.
The Revenue opposed the application by relying upon the finding of the CESTAT given in para 8 of the final order (supra).
The Bench observed -
"3. In the present case the applicants have taken excess credit 62 times during the period in dispute. In view of this it cannot be said that it is an inadvertent mistake on the part of the excise clerk."
Holding that there is no mistake apparent on record, which requires rectification, the ROM application was dismissed by the CESTAT.