Custom, Excise & Service Tax Tribunal
M/S Simplex Castings Ltd vs C.C.E. & S.T. Raipur on 7 April, 2016
IN THE CUSTOMS, EXCISE AND SERVICE TAX
APPELLATE TRIBUNAL, NEW DELHI
PRINCIPAL BENCH, COURT NO. III
Excise Appeal No. E/50158/2016-E[SM]
[Arising out of Order-In-Appeal No. BHO-EXCUS-002/APP-220-15-16 dated 29.10.2015 passed by Commr. (Appeals) Raipur]
For approval and signature:
Hon'ble Mr. S.K. Mohanty, 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?
4
Whether Order is to be circulated to the Departmental authorities?
M/s Simplex Castings Ltd. ...Appellant
Vs.
C.C.E. & S.T. Raipur Respondent
Appearance:
Mr. Manish Saharan (Advocate) for the Appellant Mr. R.K. Mishra, DR for the Respondent CORAM:
Hon'ble Mr. S.K. Mohanty, Member (Judicial) Date of Hearing/ Decision. 07.04.2016 Final Order No. 55456 /2016 Per S K Mohanty:
This appeal is directed against the impugned order dated 29.10.2015 passed by the Commissioner (Appeals) Customs, Central Excise and Service Tax, Raipur. Denial of cenvat credit on structural steel items such as MS Joists, MS Channels, Steel Plates, CTD Bars, MS Angles, MS Flat, MS Beam falling under chapter 72 of the Central Excise Tariff Act, 1985 is the subject matter of present dispute.
2. Sh. Manish Saharan, the Ld. Advocate appearing for the appellant submits that the disputed goods were not used as structures/ supporting structures of capital goods, but the same were used in relation to manufacture of final products. He has referred to page 3 in the impugned order to show the factory area where the disputed goods were used. It is his further submission that the SCNs issued by the Department are barred by limitation of time inasmuch as for the period July 2007 to September 2007, the notice was issued on 6.8.2012 and for the period April 2008 to April 2009, the notice was issued on 3.5.2013. It is his further submission that since the appellant had reflected the cenvat credit particulars in the ER-1 return, the allegation of suppression or misstatement cannot be leveled, justifying invocation of the extended period of limitation, in terms of the proviso to Section 11A of the Central Excise Act, 1944. The Ld. Advocate further submits that during the disputed period, the issue with regard to entitlement of cenvat credit on the disputed goods was highly contentious and there were divergent views by the judicial forums. Thus, according to the Ld. Advocate, in case of ambiguity in interpretation of the statutory provisions, extended period of limitation as per the proviso to Section 11A ibid cannot be invoked. To support his above stand, the Ld. Advocate has relied on the decision of this Tribunal in the case of Indus Smelters Ltd. vs CCE Raipur-I [Final Order No. 50271/2014 dated 27.01.2014], and CCE Raipur vs Hi-tech Power and Steel Ltd. [Final Order No. 52621/2014 dated 30.05.2014].
3. On the other hand, Sh. R. K. Mishra the Ld. DR appearing for the Revenue reiterates the finding recorded in the impugned order.
4. I have heard the Ld. Counsel for both the sides and perused the records.
5. It is an admitted fact on record that the SCNs were issued by the Department beyond the period of one year from the relevant date. The proviso to Section 11A has been invoked for recovery of the amount in question. Since the appellant had intimated the Central Excise Department regarding taking of cenvat credit on the disputed goods in its monthly ER-1 return, the allegation of suppression, misstatement, etc. cannot be leveled against the appellant, justifying invocation of extended period of limitation. Rule 12 of the Central Excise Rules, 2002 cast the responsibility on the proper officer to scrutinize the correctness of the information furnished in the periodical return and to call for any additional document from the assessee for necessary verification. In the present case, since the Jurisdictional Central Excise authorities have not raised any objection that the return filed by the appellant are not proper or correct, the SCN, in such an eventuality, should be confined to the period of one year from the date of filing of such return by the appellant. Thus, in absence of any specific findings regarding the involvement of the appellant in any fraudulent activities concerning fraud, collusion, suppression of fact, etc., I am of the considered opinion that longer period of limitation cannot be invoked for confirmation of demand.
6. In view of the foregoing, I do not find any merits in the impugned order on limitation aspect, and accordingly, the same is set aside and the appeal is allowed in favour of the appellant.
(Operative portion of the order dictated in the open court)
(S. K. Mohanty) Member(Judicial)
Neha
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E/50158/2016-Ex[SM]