Custom, Excise & Service Tax Tribunal
U.P. State Sugar & Cane Development ... vs Commissioner Of Central Excise, ... on 16 September, 2016
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL REGIONAL BENCH : ALLAHABAD COURT No. I APPEAL No. E/1056/2008-EX[SM] (Arising out of Order-in-Appeal No. 28 & 29-CE/ALLD/2008 dated 29/01/2008 passed by Commissioner of Central Excise & Customs (Appeals), Allahabad) For approval and signature: Honble Mr. Anil G. Shakkarwar, Member (Technical) ======================================================
1. Whether Press Reporter may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?
No
2. Whether it would be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
Yes
3. Whether their Lordships wish to see the fair copy of the order?
Seen
4. Whether order is to be circulated to the Department Authorities?
Yes
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U.P. State Sugar & Cane Development Corporation Ltd. Appellant
Vs.
Commissioner of Central Excise, Allahabad Respondent
Appearance:
Shri Ms Stuti Saggi, Advocate, for Appellant
Shri Rajeev Ranjan, Joint Commissioner (AR), for Respondent
CORAM:
Honble Mr. Anil G. Shakkarwar, Member (Technical)
Date of Hearing & Date of Decision : 16/09/2016
FINAL ORDER NO. 70888/2016
Per: Anil G. Shakkarwar
The present appeal is filed by appellant against Order-in-Appeal No. 28 & 29-CE/ALLD/2008 dated 29/01/2008 passed by Commissioner of Central Excise & Customs (Appeals), Allahabad.
2. The brief facts of the case are that the appellant was issued with a Show Cause Notice dated 22-01-2006, calling upon the appellant to show cause as to why Cenvat credit amounting to Rs.25,957/- availed and utilized on capital goods simultaneously taking the benefit of depreciation should not be recovered along with interest under the provisions of Section 11A and 11AB of Central Excise Act, 1944 read with Rule 12 of Cenvat Credit Rules, 2001. It was alleged that the appellant took Cenvat credit of Rs.25,957/- on account of Cenvat credit on capital goods and depreciation under Section 32 of Income Tax Act was claimed on the said capital goods. The said Show Cause Notice was confirmed through Order-in-Original dated 10-05-2007 wherein the demand was confirmed and penalty amounting to Rs.10,000/- was imposed on appellant. Aggrieved by the said order the appellant preferred appeal before Commissioner (Appeals) contending that the confirmation of demand was bad in law and Revenue preferred appeal before Commissioner (Appeals) contending that penalty equal to the duty confirmed should have been imposed. The said two appeals were decided through Order-in-Appeal No. 28 & 29-CE/ALLD/2008 dated 29/01/2008 wherein the ld. Commissioner (Appeals) has dismissed the appellants appeal and allowed Revenue appeal and enhanced the penalty imposed to Rs.25,957/- under Section 11AC of Central Excise Act, 1944. Aggrieved by the said Order-in-Appeal dated 29-01-2008 the appeal is filed before this Tribunal.
3. Heard the ld. Counsel for the appellant who has contested that the Show Cause Notice is hit by limitation. The ld. D.R. supported the impugned Order-in-Appeal.
4. Considered the rival contentions. The Show Cause Notice is issued on 22-01-2006 for recovery of Cenvat credit. Depreciation is mention in the balance sheet for the year 2001-02. Therefore, the normal period for Show Cause Notice was up to 22-01-2005. The period of availment of said Cenvat credit is earlier than 2001. Therefore, definitely demand is under extended period. It is noticed from the Show Cause Notice that there is no invocation of proviso to Sub-section (1) of Section 11A of Central Excise Act, 1944 for extending period of limitation. Therefore, Show Cause Notice is not sustainable. Since the Show Cause Notice is not sustainable, the Order-in-Original & Order-in-Appeal are set aside and appeal is allowed. The appellants shall be entitled for consequential relief, if any, as per law.
(Dictated and pronounced in Court) Sd/-
(Anil G. Shakkarwar) Ansari Member (Technical 1 3 Ex. Appeal No. 1056/08