Custom, Excise & Service Tax Tribunal
C.C.E., Meerut-I vs M/S. Triveni Engg. And Industries Ltd on 28 February, 2014
IN THE CUSTOMS, EXCISE & SERVICE TAX
APPELLATE TRIBUNAL
WEST BLOCK NO.2, R.K. PURAM, NEW DELHI 110 066
Date of Hearing 28.02.2014
For Approval &Signature :
Honble Mrs. Archana Wadhwa, Member (Judicial)
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?
No
3.
Whether Lordships wish to see the fair copy of the order?
Seen
4.
Whether order is to be circulated to the Department Authorities?
Yes
Application No.E/STAY/60003/2013-EX[SM]
Appeal No. E/59367/2013 -EX[SM]
[Arising out of Order-in-Appeal No.70-CE/MRT-I/2013, dated 29.04.2013 passed by C.C.E.(Appeals), Meerut-I]
C.C.E., Meerut-I Appellants
Vs.
M/s. Triveni Engg. and Industries Ltd. Respondents
Appearance Shri D. Singh, DR - for the appellants None - for the respondents CORAM: Honble Mrs. Archana Wadhwa, Member (Judicial) Final Order No.50856, dated 28.02.2014 Per Honble Mrs. Archana Wadhwa :
After rejecting the stay application filed by the Revenue, I proceed to decide the appeal itself, after hearing the Ld. Departmental Representative appearing for Revenue as the short issue is involved in the present appeal.
2. The Revenue is seeking to deny the benefit of CENVAT credit of Rs.13,35,804/- (Rupees thirteen lakh thirty five thousand eight hundred and four only) availed by the respondents on various iron and steel items like angles, channels, shapes, sections, MS plates, etc. I find that the law is settled that if the said iron and steel items are used as supporting structurals, they cannot be considered as cenvatable inputs.
3. However, I find that apart from allowing the appeal on merits, Commissioner (Appeals) has also held that the demand to be barred by limitation. For better appreciation, the relevant paragraph from the impugned order is reproduced below:-
(vi) On the issue of limitation, I find that the Audit was conducted in the month of MARCH 2010 AND THE Show Cause notice was issued to the appellant in January 2012 i.e. after a gap of 22 months. I find that the issue of availment of credit on the said items by the appellant was known to the department as the figures were reflected in the monthly returns. Secondly the issue once again came to the knowledge of the department at the time of audit itself. I find that for invoking the proviso to Section 11A read with Rule 15(2) of the Cenvat Credit Rules, 2004, it is necessary to establish that there is a deliberate act of deception, fraud etc. committed by the Assessee. A mere act of omission by Assessee without there being any intention to evade payment of duty also cannot be ground to invoke the extended period of limitation. Therefore, I am of the opinion that the allegation, of suppression of facts with intention to evade payment of duty, of the department does not sustain, hence the case is not sustainable on the grounds of limitation also.
4. I find that the Tribunal in the case of Vandana Global Vs. CCE, Raipur [2010 (253) E.L.T. 440 (Trib. LB)] and other appellants similarly situate has observed that in as much as during the relevant period, the Tribunals decisions in favour of the assessee, no mala fide can be attributed so as to justify the invoking the longer period of limitation. It stands so held in the following cases:-
i) Continental Foundation Joint Venture Vs. CCE, Chandigarh-I [2007 (216) ELT 177 (SC)].
(ii) Jaiprakash Industries Ltd. Vs. CCE, Chandigarh [2002 (146) ELT 481(SC)].
(iii) M/s. High Tech Equipments & Spares Pvt. Ltd. [Final Order No.A/58186/2013-SM(BR), dated 05.11.2013].
(iv) CCE, Raipur Vs. Baldev Alloys Pvt. Ltd. [2012-TIOL-388-CESTAT-DEL].
5. In view of the above, I do not find any infirmity in the findings of the Commissioner (Appeals) as regards demand being barred by limitation. Accordingly, the appeal filed by the Revenue is rejected. The stay petition and the appeal are disposed of in the above manner.
(Dictated and pronounced in the Open Court) (Archana Wadhwa) Member (Judicial) SSK -3-