Custom, Excise & Service Tax Tribunal
Cce, Raipur vs M/S Jaiswal Neco Industries Ltd on 24 October, 2016
IN THE CUSTOMS, EXCISE & SERVICE TAX
APPELLATE TRIBUNAL
West Block No. 2, R.K. Puram, New Delhi 110 066.
Date of Hearing/Order : 24.10.2016
Appeal No. E/3195/2012-EX (SM) with CO/4924/2012
(Arising out of Order-in-Appeal No. 97/RPR-I/2012 dated 5.7.2012 passed by the Commissioner (Appeals), Central Excise, Raipur)
CCE, Raipur Appellant
Vs.
M/s Jaiswal Neco Industries Ltd. Respondent
Appearance Shri M.R. Sharma, A.R. - for the appellant Shri Rahul Tangri, Advocate - for the respondent CORAM: Honble Mr. Ashok K. Arya, Member (Technical) Final Order No. 54711/2016 Per Ashok K. Arya :
Revenue is in appeal against the Commissioner (Appeals) order whereunder demand of duty has been dropped against the respondents viz. M/s Jaiswal Neco Industries Ltd. The matter pertains to demand of duty of Central Excise in cash as the goods viz. pig iron moulds were cleared by the assessee by utilising the Cenvat credit.
2. The respondent M/s Jaiswal Neco Industries Ltd. has been represented by ld. Advocate Shri Rahul Tangri, who points out that they have also filed cross objections against Commissioner (Appeals) impugned order saying that the Commissioner (Appeal) did not consider the merits of the case and dropped the demand on time limitation only. Therefore, their cross-objections have been called for from the Registry to be considered today for decision.
2.1 Revenue has been represented by ld. DR Shri M.R. Sharma
3. It is on record that the goods viz. pig iron moulds were cleared on payment of duty though payment was made through Cenvat credit. The departments contention that payment of duty should have been made through PLA/in cash is not sustainable in the eyes of law of Central Excise. In this regard, Rule 3(5) of then Cenvat Credit Rules, which was inserted by Notification No. 27/2005-CE(NT) dated 16.5.2005, is reproduced below:
(5A) If the capital goods are cleared as waste and scrap, the manufacturer shall pay an amount equal to the duty leviable on transaction value. Thus above Rule does not say that amount equal to the duty, is payable in cash. Therefore, payment made through Cenvat credit is also admissible.
4. Further, Revenues appeal is on the ground that the Central Excise duty was payable in cash but the respondent deliberately paid it from Cenvat Account; therefore there was intention to evade payment of duty on the part of the assessee. However, Commissioner (Appeals) is very clear in this regard and states that there is no wilful, suppression of the facts by the assessee and vital element of intention to evade duty has been missing in these proceedings. The observations made by Commissioner (Appeals), in this regard in para 8 of the order are reproduced below :
8. As regards suppression of facts, it is noted that Show Cause Notice in para 7 has mentioned that the Noticee has not provided the particulars of such removal of used pig iron moulds in their ER-1s filed under Rule 12 of Central Excise rules, 2002, therefore, the extended period under Section 11A of Central Excise Act is invokable.................. However, the adjudicating authority himself arrived at findings in para 7.2 of the impugned order stating as I also find from the ER-1s produced by the appellant, that the appellant have shown in the column 4 Details of duty paid, duty on such old and used Pig Moulds have been paid through the Credit Account (Cenvat Credit) and not through the Account Current (PLA). Thus the every basis of invoking the extended period in the Show Cause Notice has been struck down by the adjudicating authority himself. Therefore, I do not find any wilful suppression of facts by Appellant and so also the most vital element of intent to evade duty and hence demand for recovery of Cenvat Credit under the extended period of limitation in terms of Section 11A(1) of he Act, read with Rule 14 of CCR, 204 cannot be applicable in the instant case. Held accordingly.
5. In the light of above discussions the appeal is rejected and cross-objections are also disposed off accordingly.
(Dictated & pronounced in Court) (Ashok K. Arya) Member (Technical) RM 2