Custom, Excise & Service Tax Tribunal
M/S. Ballarpur Industries Ltd vs Commissioner Of Central Excise, ... on 15 November, 2011
CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL
EAST ZONAL BENCH:KOLKATA
EXCISE APPEAL NO.211/10
[ARISING OUT OF ORDER-IN-APPEAL NO.135/CE/B-I/2009 DATED 21.12.2009 PASSED BY COMMISSIONER (APPEALS), CENTRAL EXCISE, CUSTOMS & S.TAX, BHUBANESWAR]
FOR APPROVAL AND SIGNATURE OF
SHRI S.K.GAULE, HONBLE MEMBER (TECHNICAL)
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
Authorative report or not?
3. Whether his Lordship wishes to see the fair copy
of the Order?
4. Whether Order is to be circulated to the Departmental
Authorities?
M/S. BALLARPUR INDUSTRIES LTD.
APPELLANT (S)
VERSUS
COMMISSIONER OF CENTRAL EXCISE, CUSTOMS AND SERVICE TAX, BHUBANESWAR-I
RESPONDENT(S)
APPEARANCE:
SHRI S.C.MOHANTY, ADVOCATE FOR THE APPELLANT(S);
SHRI S.MISHRA, A.R.(ADDL. COMMR) FOR THE RESPONDENT(S).
CORAM:
SHRI S.K.GAULE, HONBLE MEMBER (TECHNICAL) DATE OF HEARING : 11.11.11 DATE OF DECISION:
ORDER NO Heard both sides.
2. The Appellant filed this Appeal against the Order-in-Appeal No.135/CE/B-I/2009 dated 21.12.2009, whereby ld. Commissioner (Appeals), Central Excise, Customs & Service Tax, Bhubaneswar has upheld the lower Adjudicating Authoritys Order confirming the demand of credit along with the interest and imposition of penalty of equal amount.
3. Briefly stated the facts of the case are that the Appellant is engaged in the manufacture of writing and printing paper falling under Chapter-48 of the Central Excise Tariff Act, 1985. The Appellant paid the Education Cess of Rs.70,046.00 during the period from July, 2004 to April, 2005. The Education Cess was payable @2% of Central Excise duty, whereas due to system error in the computer, the same was paid @4% resulting in excess payment of Rs.70,046.00. On detection of the error, the same was rectified by the Appellant suo motu and by taking credit of the said amount, vide Entry No.346 dated 24.05.2005. On an audit objection raised by the AG(Audit), the Department issued a show cause notice dated 20.12.2007 for recovery of the amount of credit with various other proposals for penalty etc. The lower Adjudicating Authority confirmed the proposals in the show cause notice. Aggrieved, the Appellant challenged the same before Commissioner (Appeals). Learned Commissioner (Appeals) upheld the lower Adjudicating Authoritys Order. Hence the Appeal.
4. The contention of the Appellant is that they took suo motu credit, vide Entry No.346 dated 24.05.2005. Since they had paid the Cess @4% instead of 2% and it was only rectification of mistake, it was also reflected in the monthly ER-1 return for the month of May, 2005, whereas the show cause notice was issued on 20.12.2007. Therefore, the demand is time-barred. The contention is that the question of limitation of time was raised before the Commissioner (Appeals). However, the Commissioner (Appeals) did not consider the question on the ground that this case was not taken up before the lower Adjudicating Authority. The contention is that since the question of time-bar is a question of law, therefore it can be taken up at any stage. The contention that the demand is time-barred, therefore the same is liable to be set aside and the Commissioner (Appeals) Order is not sustainable.
5. Learned A.R. reiterates the findings of the learned Commissioner (Appeals) and submits that suo motu taking of credit of excise duty paid without applying for refund, is not proper. In support of his contention, he has relies upon a decision of the Tribunal in the case of Tansi Watch Assembly Unit vs. CCE, Salem reported in 2010-TIOL-1585-CESTAT-Mad.
6. I have considered the submissions and perused the record. There is no dispute that suo motu credit was taken on 24.05.2005, and it was also reflected in the ER-1 return by May, 2005, as is clear from the relevant portion at page 3 of the Order-in-Appeal, which is reproduced below:
Herein, the issue is, excess amount of Cess paid vide invoices issued during July,2004 to April,2005 due to system error in computer was taken as credit in CENVAT account on 24.05.2005 which was also reflected in the ER-1 returns of May,2005. This issue was though initially not disputed, recovery proceeding was initiated by the Revenue and the lower authority in his order disallowed the credit on the two points.
7. There is no dispute that a show cause notice was issued on 20.12.2007, which is beyond the normal period provided under Section 11A of the Central Excise Act, 1944 and suppression of facts etc. was not alleged against the Appellant. Thus the demand raised is hit by limitation of time and issue of time-bar is a question of law, which needs to be considered. The Appellant raised this point before the learned Commissioner (Appeals), which was not considered on the ground that the Appellant had not taken this aspect before the lower Adjudicating Authority. I find that the said question can be raised by the Appellant before this Tribunal. In view of the above discussion, the Order-in-Appeal is set aside and Appeal is allowed.
Pronounced on 15.11.2011 Sd/-
(S.K.GAULE) MEMBER (TECHNICAL) DUTTA/ 4 EXCISE APPEAL NO.211/10