Custom, Excise & Service Tax Tribunal
M/S.Tata Chemicals Ltd vs Commissioner Of Central Excise, Haldia on 1 February, 2011
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE
TRIBUNAL, KOLKATA
EASTERN ZONAL BENCH: KOLKATA
Appeal No.Ex.Ap.27/10
(Arising out of Order-in-Appeal No.60/HAL/09 dated 13.10.2009 passed by the Commissioner(Appeal-I) of Central Excise, Kolkata.)
FOR APPROVAL AND SIGNATURE
HONBLE SHRI S.S. KANG, VICE PRESIDENT
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 Their Lordship wishes to see the fair copy
of the Order?
4. Whether Order is to be circulated to the Departmental
Authorities?
M/s.Tata Chemicals Ltd.
Applicant (s)/Appellant (s)
Vs.
Commissioner of Central Excise, Haldia
Respondent (s)
Appearance:
Shri S.P.Majumder, Advocate for the Appellant (s) Shri A.K.Sharma, Authorized Representative (JDR) for the Revenue (s) CORAM:
Honble Shri S.S.Kang, Vice President Date of Hearing/Decision :- 01.02.2011 Date of Pronouncement :- 01.02.2011 ORDER NO.
Per Shri S.S.Kang.
1. Heard both sides.
2. Appellant filed this Appeal against the impugned order whereby credit of Rs.2,92,760/-(Rupees Two Lakhs Ninety Two Thousand Seven Hundred and Sixty only) was denied and equal amount of penalty was imposed.
3. Appellants were working under the MODVAT Scheme and availed credit of duty paid in respect of capital goods and inputs during the period 1994 to 1995. A Show Cause Notice was issued on 25.10.1996 for demand of duty after denying the credit by invoking extended period of limitation on the ground of suppression with intent to evade payment of duty. The adjudicating authority confirmed the demand and imposed penalty. Commissioner(Appeals) dismissed the Appeal filed by the Appellants.
4. Appellants argued on merits as well as on time bar. Contention of Appellants is that the credit was availed during the period July 1994 to September 1995 and Appellants were filing monthly returns along with relevant documents such as copies of the duty paying documents. The documents were duly defaced by the proper officer and credit was allowed. As per the provisions of Rule 57I of Central Excise Rules on the date when Show Cause Notice was issued a notice is to be issued within 6 (six) months from the last date on which the return is to be filed for disallowing the credit which has been taken on account of an error, omission or mis-construction on the part of an officer or a manufacturer. Extended period of limitation of 5 (five) years is available in the case where credit has been availed on account of willful misstatement, commission or suppression of facts. In the present case as Appellants filed monthly returns regularly along with duty paying documents which were duly defaced therefore allegation of suppression with intent to evade payment of duty is not sustainable. Hence the demand is time barred.
5. The contention of Revenue is that Appellants were working under the MODVAT scheme and are aware of the provisions of the Central Excise Rules and they had wrongly taken the credit which was not admissible therefore extended period was rightly invoked.
6. I find that the credit was availed during the period July 1994 to September 1995 as per the annexure to Show Cause Notice and the Show Cause Notice was issued on 25.10.1996 alleging suppression with intent to evade payment of duty. As per the provisions of Rule 57I of Central Excise Rules which deals in respect of credit wrongly availed or utilized, extended period of limitation is applicable where the credit has been taken on account of willful misstatement, commission or suppression of facts. In the present case as Appellants were filing regularly the monthly returns along with duty paying documents which were duly defaced and there is no dispute in this regard hence without going into the other issues the demand is liable to be set aside on the ground of time bar. The impugned order is set aside and Appeal is allowed.
(Pronounced and dictated in the open court.) Sd/ (S.S.KANG) VICE PRESIDENT sm 3 Appeal No.Ex.Ap.27/10