Custom, Excise & Service Tax Tribunal
Gtn Industries Ltd vs Commissioner Of Central Excise, ... on 23 December, 2013
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL SOUTH ZONAL BENCH BANGALORE Final Order No . 27145 / 2013 Appeal(s) Involved: E/1379/2011-SM [Arising out of Order-in-Appeal No. 12/2011 (H-III) (CE) dated 27/02/2011 passed by the Commissioner of Customs, Central Excise and Service Tax (Appeals-III) Hyderabad] GTN INDUSTRIES LTD MAHABUBNAGAR.AP. -509 002 Appellant(s) Versus Commissioner of Central Excise, Customs And Service Tax - HYDERABAD-III OPP LB STADIUM ROAD, BASHEERBAGH, HYDERABAD, ANDHRA PRADESH-500004 Respondent(s)
Appearance:
Mr. Cherian Punnosse, Adv #211, COMMERCE HOUSE, 9/1, CUNNINGHAM ROAD, BANGALORE KARNATAKA-560052 For the Appellant Mr. A.K. Nigam, A.R. For the Respondent CORAM:
HONBLE SHRI B.S.V. MURTHY, TECHNICAL MEMBER Date of Hearing: 23/12/2013 Date of Decision: 23/12/2013 Appellants had utilized MS angles, channels, beams, plates etc. for supporting structures in their unit during the period from May 2005 to September 2009. A show-cause notice was issued proposing to deny the CENVAT credit on the ground that such credit is not admisisble. In the impugned order, demand for CENVAT credit of Rs. 2,68,065/- has been confirmed and penalty equal to the amount demanded has been imposed. Learned counsel submits that in this case extended period could not have been invoked in view of the fact that appellant could have entertained a bonafide belief regarding his eligibility to CENVAT credit because during the relevant period there were decisions taking a view in favour of the asesseees in many cases. Because of contrary decisions, the matter came to be referred to Larger Bench and the Larger Bench in the case of Vandana Global Ltd. Vs CCE Raipur reported in [2010(253)E.L.T.440(Tri-LB)] came to the conclusion that benefit was not admissible. Therefore till the Larger Bench decided, two views were possible. In such circumstances, assessee cannot be found fault with if the benefit of a view favourable to assessee is taken by them. Further, he also relies upon the decision of the Tribunal in the case of CCE Raipur Vs Orion Ferro Alloys Pvt. Ltd. [2010(259)E.L.T. 84(Tri-Del)] 2013 715 53 CESTAT New Delhi to submit that in this decisions, a view that extended period could not have been taken has been taken. Moreover he also submit that in the ER-1 returns filed by the assessee, they had specifically indicated availment of credit in respect of these items and Chapter Heading was also indicated even then the department did not raise any objection.
2. Learned A.R. on the other hand relies upon the observations of the Commissioner (Appeals) wherein he has upheld the invocation of extended period. The ground on which the Commissioner (Appeals) has taken a view that appellants did not maintain proper production records and have suppressed the fact of using these items as supporting structures. Further, he also relied upon the decision in the case of Vandana Global and Saraswati Sugar Mills Vs CCE Delhi-III [2011(270)E.L.T.465(S.C.)].
3. I have considered the submissions made by both sides. In this case, the appellant is not disputing the CENVAT credit availed within the normal period and they have already discharged the entire liability with interest for the normal period of limitation. The only dispute is regarding the liability relating to the extended period and a penalty imposed on the appellant company.
4. I find considerable force in the arguments advanced by the learned counsel. In this case, till the decision of the Larger Bench was rendered, there were views in favour of the assessee. Moreover, assessee also in this case has indicated the items in the ER-1 returns with the Chapter Heading and when the Chapter Heading was not covered by the capital goods definition, it can be said that the appellant had fulfilled the obligation cast on them. As far as the declaration is concerned the question of misdeclaration would not arise when an assessee is entitled to a benefit. Further, I also find that the decision relied upon by the learned counsel for submission that extended period could not have been invoked is also appropriate and it had to be followed. As regards the decision in the case of Saraswati Sugar Mills Ltd. relied upon by the learned A.R., I find that there is no dispute as regards eligibility or otherwise of the CENVAT credit. The question involved before me is only invocation of extended period which in my opinion and also following the precedent Tribunal decision could not have been invoked in this case when an assessee is entitled to a bonafide belief and as it is held that there was no misdeclaration or suppression, question of penalty also would not arise. Under these circumstances the demand for normal period is upheld. As regards the demand for the normal period for interest it has already been discharged and not contested. Appeal is decided in the above terms.
(Order dictated and pronounced in open court) [B.S.V. MURTHY] TECHNICAL MEMBER pnr...
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