2019 (2) TMI 254 – CESTAT CHENNAI – TMI – Extended period of limitation – SSI Exemption – crossing of threshold limit – SSI limit exceeded during the period 2011-12, but registration taken only on 18.01.2012 – no suppression of facts – no intent to evade – Held that:- The audit party did not find any short-payment of duty.
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Interestingly, the show-cause notice is issued after more than two years invoking the extended period alleging suppression of facts. When the appellants themselves had informed the department regarding the omission to pay duty, the allegation of suppression is without any factual basis – So also, when the audit party has not raised any objection after going through the accounts in 2013, it can be safely concluded that the credit was sufficient to adjust to the duty liability. Merely because the appellants could not produce certain invoices, after more than two years cannot be a found to saddle them guilt of suppression of facts.
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The department has faile
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le goods valued at ₹ 68,09,255/- without paying Central Excise duty from 16.09.2011 to 04.01.2012 and had paid excise duty only after getting registration on 18.01.2012. Therefore, show-cause notice dated 22.08.2016 was issued to the appellants proposing to demand duty of ₹ 9,81,894/- along with interest and also proposing to impose penalties. After due process of law, the original authority confirmed the demand of ₹ 6,20,217/- after allowing the cum-duty benefit and also allowing Cenvat credit benefit of ₹ 2,46,609/- and the balance of ₹ 3,73,607/- was alone confirmed. However, equal penalty of ₹ 6,20,217/- was imposed under section 11AC of the Central Excise Act, 1944. On appeal filed before the Commissioner (Appeals), it was observed that the appellants are eligible for credit on further invoices for adjustment towards the duty liability. However, the penalty was sustained. Aggrieved, the appellants are now before the Tribunal. 2. On behalf of the
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d to the jurisdictional Assistant Commissioner, the appellants had given tabulation of the credit available and the duty liability, which was certified by the Chartered Accountant. As per such letter, after adjustment of Cenvat Credit there is no duty liability on the part of the appellants. Subsequent to such letter, the department conducted audit in 2013. On intimation by Internal Audit party calling for details, the appellants had vide letter dated 04.07.2013 submitted all the sales/purchase invoices for the year 2011-12. All the 50 invoices on which the appellants' claimed credit for adjustment towards the duty liability for the impugned period was submitted. The audit party did not raise any objection on this count. They had raised the objection on wrong availment of credit on steel roofing to an amount of ₹ 23,084/- and the appellants had paid up such wrong credit along with interest. Other than this objection, the audit party had not raised any objection with regard to
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als), the appellants had put forward these contentions and also contested the disallowance of credit with regard to the 14 invoices. The Commissioner (Appeals) had obtained and verified the invoices from M/s. IOCL and thereby allowed credit on 11 invoices but rejected the credit on three invoices. Even only these [36 + 11] 47 invoices are taken into consideration, there is sufficient eligible credit for adjustment to the duty demand confirmed. He argued that the appellants have procured inputs only from Sector Undertakings and all the transactions are accounted. They were unable to produce the invoices only because these were lost in cyclone/flood. The learned consultant adverted to page 119 of the appeal book and argued that the worksheet in the said page would show that if 47 invoices are considered, the same would be sufficient to adjust towards the duty liability as determined by the department. Even after such adjustments, there would be excess credit. 4. The learned consultant st
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of all the invoices produced by the appellants. Therefore, the demand is legal and proper. 6. Heard both sides. 7. The learned consultant has strongly argued on the ground of limitation. On perusal of records, it is see that the appellants have issued a letter to the Assistant Commissioner of Central Excise, dated 18.01.2013. In such letter, they have explained that their turnover for the clearances of Bitumen Emulsions for the period 2011-12 is liable to excise duty as they have exhausted the aggregate value of clearances on 31.10.2011. The details of the clearances for the period 2009-10, 2010-11 and 2011-12 is given by them. So also, the credit eligible on inputs for the goods manufactured during the said period is also given in detail. Such details are supported by the certificate of a Chartered Accountant. It is the case of appellants that they omitted to notice that they have exhausted the SSI limit and continued to clear the goods without payment of duty during 2011-12. On reali
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cause notice is issued after more than two years invoking the extended period alleging suppression of facts. When the appellants themselves had informed the department regarding the omission to pay duty, I find that the allegation of suppression is without any factual basis. So also, when the audit party has not raised any objection after going through the accounts in 2013, it can be safely concluded that the credit was sufficient to adjust to the duty liability. Merely because the appellants could not produce certain invoices, after more than two years cannot be a found to saddle them guilt of suppression of facts. The contention of the appellants that they have lost certain documents in the cyclone is probable. The demand raised by the department alleging that the appellants have suppressed facts with intention to evade payment of duty is wholly incorrect, since the appellants themselves have brought the fact to the knowledge of the department vide their letter dated 18.01.2013. If t
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