Custom, Excise & Service Tax Tribunal
M/S. Ambuja Cements Ltd vs Commissioner Of Central Excise on 5 November, 2013
IN THE CUSTOMS, EXCISE AND SERVICE TAX
APPELLATE TRIBUNAL, NEW DELHI
PRINCIPAL BENCH, COURT NO. III
Excise Appeal No. 1770 of 2011-SM
[Arising out of Order-In-Appeal No. 90(CB)/JPR-II/2011 dated 31.03.2011 passed by Commissioner of Central Excise (Appeals), Jaipur II]
For approval and signature:
Honble Ms. Archana Wadhwa, Member (Judicial)
1
Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?
2
Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
3
Whether Their Lordships wish to see the fair copy of the Order?
Seen
4
Whether Order is to be circulated to the Departmental authorities?
Yes
M/s. Ambuja Cements Ltd. Appellants
Vs.
Commissioner of Central Excise Respondent
Jaipur Appearance:
Shri Hemant Bajaj, Advocate for the Appellants Shri B.B. Sharma, DR for the Respondent CORAM:
Hon'ble Ms. Archana Wadhwa, Member (Judicial) Date of Hearing /Decision: 5.11.2013 ORDER NO . FO/ 58319 /2013-SM(Br) Per Ms. Archana Wadhwa:
As per the facts on record, the appellant is engaged in the manufacture of cement and clinker. They have the facility of self generated electricity from the power plant situated in their factory in addition to power purchased from the State Electricity Board. They were availing the facility of Cenvat credit of duty paid on the furnace oil used in the manufacture of electricity. A part of the electricity was being diverted by them to their residential colony.
2. By entertaining a view that appellant was not entitled to avail credit of duty paid on the furnace oil which stand used in the manufacture of electricity and consumed in residential colony, demand of duty of Rs.2,31,373/- was raised against the appellant for the period July, 2000 to September 2004 by way of raising a show cause notice dated 29.10.04. The said show cause notice culminated into an order passed by the original adjudicating authority disallowing the credit as proposed in the notice and imposing penalty of identical amount under Rule 13 of Cenvat Credit Rules, read with Section 11 AC of the Central Excise Act. The said order stands upheld by Commissioner (Appeals). Hence, the present appeal by the appellant.
3. Learned advocate appearing for the appellant fairly agrees that issue stand decided against them by the Honble Supreme Court decision and as such, he is not contesting the confirmation of demand on merits. However, he submits that during the relevant period, there were decisions in favour of assessee and as such, no malafide can be attributed to them. He relies upon the Tribunal; decision in the case of M/s. Kandhari Beverages Pvt. Ltd. vs. CCE Chandigarh, Final Order No. 56572/2013 SM (Br) dated 7.6.13 wherein under identical circumstances the longer period of limitation was held as not applicable and penalty was set aside. He however, fairly agrees that a part of the demand would be within the longer period and the appellant is not disputing the same.
4. After hearing the learned DR, I find that Tribunal in the above referred decision of the Kandhari Beverages has observed as under:
5. By considering said argument of the learned advocate, I find that the Tribunal in the case of Diamond Cements Ltd. vs. CCE Bhopal [2012 (283) ELT 226 (Tri-LB)] has held that when during the relevant period, the decision of the Higher appellate forums were in favour of the assessee, no suppression can be alleged against the assessee. Admittedly, in the present case the Honble Punjab and Haryana High Court, the Honble Gujarat High Court as also the Larger Bench of the Tribunal has interpreted the provisions of Rule 6(2) of Cenvat Credit Rules in a manner that no reversal liability of Cenvat credit would arise in respect of assessee where no separate accounts are being maintained in case of fuel which is being used for dutiable as also for exempted final product. If the expert bodies, judicial as well as quasi judicial, have interpreted the law in favour of the assessee, the assessee cannot be held guilty of any suppression or mis-statement etc. Inasmuch as the show cause notice stand issued by invoking the longer period of limitation, I hold that demand is barred by limitation. Accordingly, the impugned order is set aside on this ground and appeal allowed with consequential relief to the appellant.
5. By considering said argument of the learned advocate, I find that the Tribunal in the case of Diamond Cements Ltd. vs. CCE Bhopal [2012 (283) ELT 226 (Tri-LB)] has held that when during the relevant period, the decision of the Higher appellate forums were in favour of the assessee, no suppression can be alleged against the assessee. Admittedly, in the present case the Honble Punjab and Haryana High Court, the Honble Gujarat High Court as also the Larger Bench of the Tribunal has interpreted the provisions of Rule 6(2) of Cenvat Credit Rules in a manner that no reversal liability of Cenvat credit would arise in respect of assessee where no separate accounts are being maintained in case of fuel which is being used for dutiable as also for exempted final product. If the expert bodies, judicial as well as quasi judicial, have interpreted the law in favour of the assessee, the assessee cannot be held guilty of any suppression or mis-statement etc. Inasmuch as the show cause notice stand issued by invoking the longer period of limitation, I hold that demand is barred by limitation. Accordingly, the impugned order is set aside on this ground and appeal allowed with consequential relief to the appellant.
5. By considering said argument of the learned advocate, I find that the Tribunal in the case of Diamond Cements Ltd. vs. CCE Bhopal [2012 (283) ELT 226 (Tri-LB)] has held that when during the relevant period, the decision of the Higher appellate forums were in favour of the assessee, no suppression can be alleged against the assessee. Admittedly, in the present case the Honble Punjab and Haryana High Court, the Honble Gujarat High Court as also the Larger Bench of the Tribunal has interpreted the provisions of Rule 6(2) of Cenvat Credit Rules in a manner that no reversal liability of Cenvat credit would arise in respect of assessee where no separate accounts are being maintained in case of fuel which is being used for dutiable as also for exempted final product. If the expert bodies, judicial as well as quasi judicial, have interpreted the law in favour of the assessee, the assessee cannot be held guilty of any suppression or mis-statement etc. Inasmuch as the show cause notice stand issued by invoking the longer period of limitation, I hold that demand is barred by limitation. Accordingly, the impugned order is set aside on this ground and appeal allowed with consequential relief to the appellant.
5. By following the same, I hold that the longer period of limitation was not available to the Revenue. Consequently, the imposition of penalty upon them would not be justified. However, inasmuch as a part of the demand would fall within the limitation period, the matter is being remanded for quantification of the same.
6. Appeal is disposed of in the above manner.
( operative part of the order pronounced in the open Court )
( Archana Wadhwa ) Member(Judicial)
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Appeal No. 1770 of 2011