M/s. Giordano Fashions India Pvt. Ltd. Versus Commissioner of GST & Central Excise, TK (Chennai North)
Central Excise
2018 (11) TMI 1079 – CESTAT CHENNAI – TMI
CESTAT CHENNAI – AT
Dated:- 28-8-2018
Appeal No. : E/40789/2018 – Final Order No. 42419/2018
Central Excise
Shri P Dinesha, Member (Judicial)
Shri. C. Seethapathy, Advocate for the Appellant
Shri. R. Subramaniyan, AC (AR) for the Respondent
ORDER
This is an assessee's appeal wherein the assessee has challenged the interest and penalty for the period 01.03.2011 to 31.12.2012.
2. The Revenue issued a Show Cause Notice to the appellant on 26.02.2016 alleging inter alia that the appellant had taken CENVAT Credit on certain goods purchased which were not used in the manufacture of their final products; the CENVAT Credit taken was therefore not legally correct and proper. On being pointed out by the audit party, the appellant debited Rs. 1,62,811/- in their December, 2012 ER-1 return; the appellant had pai
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ng not met with success in its first appeal before the first appellate authority, the appellant is in appeal before this forum.
4. During the course of hearing, Shri. C. Seethapathy, Ld. Advocate appeared for the assessee and Shri. R. Subramaniyan, Ld. Department Representative (DR) appeared for the Revenue.
5.1 The contentions of the Ld. Advocate are broadly summarized as under :
(i) The appellant has been filing its monthly ER-1 returns regularly, which are duly audited;
(ii) The appellant voluntarily reversed the alleged irregular CENVAT Credit on being pointed out as early as December 2012;
(iii) The Show Cause Notice does not allege any suppression or fraud or misstatement, is clearly time barred;
(iv) That though the CENVAT Credit was available in excess, had remained unutilized.
5.2 He relies on the following judgments :
* Commissioner of Customs Vs. Magus Metals P. Ltd. [2017 (355) E.L.T. 323 (S.C.)]
* Commissioner of C.Ex., Cus. & S.Tax Vs. Suvidha Engineers India
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e is no allegation of suppression or fraud or misstatement. In fact, the only strongest allegation against the appellant is that the fact of availing ineligible credit came to the knowledge of the Department only after the verification conducted by the internal audit wing of the Department on 03.01.2013 and 04.01.2013, which had been duly reciprocated in good faith by the appellant by accepting and filing its December 2012 ER-1 return which remains undisputed.
8.1 It is also an undisputed fact that the appellant had reversed the unutilized CENVAT Credit since it is nowhere disputed, either in the Show Cause Notice or in the Order-in-Original or in the impugned Order as to the availability of excess CENVAT Credit.
8.2 From the above, I find strength in the contention of the Ld. Advocate that the Notification of extended period of limitation was bad for which I find it useful to rely on the judgment of the Hon'ble Apex Court in the case of Magus Metals P. Ltd.(supra) wherein the Hon'bl
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difficult to understand as to how the Revenue could have the benefit of anything but the ‚normal‛ period of limitation to issue the show cause notices dated 18-3-2003. The order of the learned Tribunal insofar as the six appeals are concerned, holding show cause notices issued therein to be time barred and interfering with the adjudication orders dated 29-3-2004 and 23-9-2004, therefore, must have the approval of this Court.”
9.1 I find from the documents furnished along with the appeal memo that the appellant, in its response to Show Cause Notice, had categorically submitted that the ineligible CENVAT Credit was never utilized, rather the same was available as balance in its CENVAT Credit Account and that as of February 2016, the excess balance amount to the tune of Rs. 42,80,511/- was lying in its CENVAT Credit.
9.2 On a perusal of both Order-in-Original as well as the impugned Order, I find that the above categorical statement has neither been controverted nor examined
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