M/s. MUTHOOS ENTERPRISES Versus COMMISSIONER OF GST & CENTRAL EXCISE, CHENNAI
Central Excise
2019 (2) TMI 254 – CESTAT CHENNAI – TMI
CESTAT CHENNAI – AT
Dated:- 20-11-2018
E/42093/2018 – FINAL ORDER NO. 42920/2018
Central Excise
Smt. Sulekha Beevi C.S, Judicial Member
For the Appellant: Shri S. Jayanth, Cons.
For the Respondent: Shri L. Nandakumar, AC (AR)
ORDER
The brief facts are that the appellants are engaged in the manufacture of Bitumen Emulsion and were availing the facility of SSI exemption as per Notification No.8/2003-CE., dated 01.03.2003 till 2010-11. They got registered with Central Excise department from 18.01.2012. On verification of invoices issued by the appellants for the financial year 2011-12, it was noticed that their aggregate value of clearances had reached Rs. 150 lakhs on 12.09.2011 and that they are not eligible for SSI exemption for the financial year 2011-12. They had cleared excisable goods valued at Rs. 68,09,255/- without payin
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matter. He submitted that the main raw material used for the manufacture is Bitumen procured from the oil industries namely, IOCL, BPCL and HPCL. The appellants were availing SSI exemption till 2010-11 as their clearances was below Rs. 150 lakhs. However, it was omitted to notice by oversight that the clearances had exceeded Rs. 150 lakhs on 31.10.2011. It was detected by the appellants themselves and have issued a letter to the department dated 18.01.2013 explaining their clearances have exceeded the prescribed limit and, therefore, they have got registered for payment of Central Excise duty. In such letter, the appellants had given the details of clearances as well as the credit eligible on inputs. The details of 50 invoices as to the eligibility of input for adjustment to the duty liability for the disputed period of 2011-12 was clearly stated in the detailed letter. In the letter dated 18.01.2013, issued to the jurisdictional Assistant Commissioner, the appellants had given tabula
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ome out of the SSI exemption. The appellants believed that the audit party was satisfied that there is no duty liability for the period 2011-12.
3. To the surprise of the appellants', a show-cause notice dated 22.08.2016 was issued invoking extended period, alleging suppression of facts and demand of duty of Rs. 9,81,894/-. The appellants contested the demand and submitted the invoices on which credit was available. They had submitted 36 invoices on which the credit of Rs. 3,73,607/- was worked out by the adjudicating authority. Due to the Wardha Cyclone in 2016, the appellants had lost some of the invoices and could not produce the entire invoices. Though, the appellants had pleaded that the invoices were produced before the audit party and that audit had not raised any objection, it was not considered by the original authority. At the time of hearing the appeal before the Commissioner (Appeals), the appellants had put forward these contentions and also contested the disallowance
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de letter dated 18.01.2013 giving all details with regard to duty liability for the clearances made in 2011-12. The appellants themselves have furnished such details. The demand then made after more than two years alleging suppression of facts cannot sustain. Further, that the audit party had visited the premises and verified all documents in 2013 and had not raised any objection. He, therefore, pleaded that the extended period invoked is incorrect and not sustainable.
5. The learned Authorised Representative Shri L. Nandakumar supported the findings in the impugned order. Admittedly, the appellants exceeded the SSI limit during the period 2011-12. They have taken registration only on 18.01.2012 and have started paying the duty only from such date. The appellants were able to produce the entire invoices to support their claim of Cenvat credit. The authorities below have given assessments of credit of all the invoices produced by the appellants. Therefore, the demand is legal and prope
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18.01.2012. Since then, they have been discharging the excise duty after availing Cenvat Credit. The department had sent an audit party as per letter of the audit party, dated 10.06.2013, the appellants have furnished all the details with regard to the original sales and purchase invoices for the year 2011-12. The appellants have produced all the documents before the audit party. It is seen that the audit party had pointed out only the ineligibility of credit on Steel Roofing to an amount of Rs. 23,084/-. The appellants had rectified the objection by paying up the wrongly availed credit along with interest. The audit party also after verification of amounts had not raised any objection with regard to the adjustment of Cenvat Credit towards the duty liability for the period 2011-12. This leads to the strong inference that audit party did not find any short-payment of duty. Interestingly, the show-cause notice is issued after more than two years invoking the extended period alleging sup
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