Custom, Excise & Service Tax Tribunal
M/S. Premier Procelain Pvt. Ltd vs Cce, Jaipur-I on 7 January, 2014
IN THE CUSTOMS, EXCISE AND SERVICE TAX
APPELLATE TRIBUNAL, NEW DELHI
COURT NO. III
Excise Appeal No. 4084/2010-EX[SM]
[Arising out of Order-In-Appeal No. 448(DKV)CE/JPR-I/2010 dated 27.09.2010 passed by CCE, Jaipur-I]
For approval and signature:
Honble Ms. Archana Wadhwa, Judicial Member
1
Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?
No
2
Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
No
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. Premier Procelain Pvt. Ltd. Appellant
Vs.
CCE, Jaipur-I Respondents
Appearance:
Shri Jitin Singhal, Advocate for the Appellant Shri B.B. Sharma, DR for the Respondent Coram: Honble Ms. Archana Wadhwa, Judicial Member Date of Hearing: 05.11.2013 Date of Decision: 07.01.2014 FINAL ORDER NO. 50006/2013 Per Ms. Archana Wadhwa:
I have heard both the sides duly represented by Shri Jitin Singhal learned Advocate and Shri B.B. Sharma learned DR.
2. During November 2007, the Central Excise records of the appellant were audited and an audit memo was issued pointing out that the appellant have taken Cenvat credit amounting to Rs. 7,45,180/- on various items without the original duty paying documents. On the basis of this audit memo, show cause notice was issued on 13/2/09 for recovery of the above-mentioned wrongly availed Cenvat credit alongwith interest and for imposition of penalty on the appellant under Rule 15 of the Cenvat Credit Rules, 2004. The show cause notice alleged that the appellant have willfully misstated that the original copies of the relevant document were available, while they did not have the original copies. The matter was adjudicated by the Additional Commissioner vide order-in-original 9/2/2010 by which she held that only the demand of Rs. 44,306/- is correct on merit, but this too is time barred and hence, not sustainable. Accordingly, the Additional Commissioner dropped the entire Cenvat credit demand. On review appeal being filed by the department in respect of Additional Commissioners order dropping the demand of Rs. 44,306/-, the Commissioner (Appeals) vide order-in-appeal dated 27/09/10 allowed the appeal and confirmed the demand of Rs. 44,306/- invoking extended period and also imposed penalty of equal amount. It is against this order that the present appeal stand filed.
3. Learned Advocate, appearing for the appellant pleaded that the demand is time barred, as while the Cenvat credit demand is for the period from April 2006 to May 2007, the show cause notice had been issued on 13th February 2009, that the proviso to Section 11A (1) has not been invoked in the show cause notice, that there was no suppression of any relevant information on the part of the appellant and hence there was no justification for invoking the extended period, that the impugned order is not sustainable and prayed for setting aside the same.
4. Learned Departmental Representative, opposed the prayer by reiterating the findings of the Commissioner (Appeals) in the impugned order. She pleaded that there is allegation in the show cause notice that the appellant had wilfully given wrong information to the Department, that they were in possession of original duty paying document which had been shown to the audit party while no such documents had been shown to the audit party, that even if the proviso to Section 11 A (1) is not specifically invoked, since the allegation of wilful misstatement has been made in the show cause notice, the longer limitation period can be invoked, that in this regard she relies upon the Tribunals judgment in the case of Best Liquifiable Gases Ltd. vs. CCE, New Delhi reported in 1997 (95) E.L.T. 228 (Tribunal) and Travancore Cement Ltd. vs. CCE, Cochin reported in 1998 (103) E.L.T. 260 (Tribunal).
5. The short point required to be decided in the present appeal is that whether the demand of duty of Rs. 44306/- has to be held as barred by limitation on the grounds of non mentioning of proviso to Section 11-A in the show cause notice or such non mention has to be held as of no consequence.
6. The additional Commissioner, while adjudicating, has observed as under:-
18. The assessee further contended that the demand is time barred as the show cause notice for the period April, 2006 to May, 2007 has been issued on 13.02.2009 and the normal period laid down in Section 11 A of Central Excise Act 1944 is one year from the relevant date and the proviso to Section 11A ibid has also not invoked in the show cause notice. I find force in the contention of assessee and find that in the show cause notice the proviso to Section 11A of Central Excise Act, 1944 has not been invoked and therefore the demand in respect of Bill of Entry No. 105005/01.05.06 involving duty amounting to Rs. 44,306/- mentioned at S. No. 7 of the Annexure to Show cause notice is barred by limitation. Accordingly, I hold that demand for recovery of the Cenvat credit of the same i.e. Rs. 44,306/- is time barred and not sustainable.
7. The Commissioner (Appeals), while reversing the decision of the additional Commissioner, has observed as under:-
(a) In the instant case the respondent has availed Cenvat credit of Rs. 44,306/- in respect of inputs received by them and reflected the availment of credit on the strength of Bill of Entry no. 105005 dated 01.5.2006 in their return submitted to the Department. The Department have placed enormous faith and trust on the respondent for the purpose of taking Cenvat credit on the basis of proper documents as prescribed in Rule 9 of the Cenvat Credit Rules, 2004. However, the respondent failed to discharge their duties and responsibilities as required by them under the said provisions in as much as the respondent has shown the receipt of inputs in their raw material accounts without the basis of any proper documents. The respondent has neither intimated the department about the non receipt of the document/ non- availability of the document which proves the correctness of availment of Cenvat credit by them. This was apparently done intentionally in a cool and calculated manner which gets reflected in their acts of not reversing the same even on being pointed out by the Department at the time of audit and subsequent correspondence made by the jurisdictional Range Superintendent. The above act of the respondent provided sufficient grounds for invoking the extended period for raising demand beyond normal period of one year.
(b) Now once it was discussed and clearly provided in the show cause notice about the act of the respondent of wrong availment of Cenvat credit with intent to evade payment of duty, interest was also demanded under Section 11-AB of the Central Excise Act, 1944 and penal provisions under Rule 15(2) of Cenvat Credit Rules, 2004 read with Section 11-AC of the Central Excise Act, 1944 were also invoked. Now the very short question remains for consideration is when the grounds for invoking the extended time period, Section 11-A of Central Excise Act, 1944 was mentioned, the demand can be said to as time bar in absence of writing the word proviso and whether the mentioning of Section 11-A will cover the proviso itself. In this regard I find that once the ingredient of invoking the extended period was available and described in the show cause notice it makes no difference that the word proviso was not mentioned particularly in a situation when Section 11-A of the Central Excise Act, 1944 was invoked. The case law cited by the appellant do not spell out the facts of the case as whether at the time of issuing show cause notice the details allegation of suppression of facts, fraud, collusion with intent to evade payment of duty were levelled or not. Therefore these case laws are not applicable in the instant case.
8. The appellant have advanced the argument that since the proviso to Section 11 A was not specifically mentioned in the show cause notice, the demand should be held has barred by limitation. However, I note that proviso to section 11A is part and parcel of section 11A. Merely because it was not specifically mentioned in the show cause notice when the allegation of suppression are clearly specified and the demand of duty is being raised under section 11A, non mentioning of the specific proviso of section 11A will not the vitiate the proceedings as long as the charges are clearly brought out in the show cause notice. Not only that section 11A, includes the proviso to the said section and the entire section stands mentioned in the show cause notice, it has to be held that the provisos of the said section also get invoked. As such I find that the infirmity in the impugned order of Commissioner (Appeals). The present appeal is accordingly rejected.
(Pronounced in the open Court on 07.01.2014) (Archana Wadhwa) Member (Judicial) Jyoti* ??
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