Commissioner, CGST And C. Ex Versus Adani Gas Pvt. Ltd.
Central Excise
2017 (10) TMI 331 – GUJARAT HIGH COURT – 2017 (356) E.L.T. 541 (Guj.)
GUJARAT HIGH COURT – HC
Dated:- 5-10-2017
Tax Appeal No. 792 of 2017
Central Excise
MR. AKIL KURESHI AND MR. BIREN VAISHNAV, JJ.
For The Appellant : Mr Ankit Shah, Advocate
ORAL ORDER
(PER : HONOURABLE MR.JUSTICE AKIL KURESHI)
1. Department is in appeal against the judgment of the CESTAT dated 30.01.2017 raising following questions for our consideration:
“i) Whether Ld. CESTAT was justified in holding the demand as time barred and in setting aside the mandatory penalty imposed by Adjudicating authority under the provisions of Rule 15(2) of the Cenvat Credit Rules, 2004 read with Section 11AC of the Central Excise Act, 1944?
ii) Whether the Ld. CESTAT is correct by not imposing penalty under Rule 15(2) of CENVAT Credit Rules, 2004 read with Section 11AC of Central Excise Act, 1944 merely on the ground of limitations
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artment and the appellant had been continuing on the issue of Centralised registration since Oct. 2005. Therefore, there is merit in the contention of the appellant that necessary information had been furnished from time to time about their business of compression of natural gas and distribution/sale of CNG from daughter stations through their various letters enclosed with the Appeal paper book. Besides, th eAppellant had informed the department about their intention to avail CENVAT credit on 27.02.2007. Thus, extended period of limitation cannot be applicable in the facts of the first show came notice.
25. The second demand notice which was issued in May 2009 is clearly barred by limitation inasmuch as during the course of furnishing statement Shri Ketan Vyas Assistant Manager, categorically stated that all information had been submitted to the range Sept on 07.09.2007. We find that even though the same has been mentioned at paragraph 4.1 of the show cause notice, no contrary eyide
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port from the judgement of Honourable Gujarat High Court in Dashion Ltd's case (supra). Their Lordships observed as:
“8. Coming to the question of penalty, right from the show cause notice stage till the final disposal of the show cause notice proceedings, we find little evidence to support the allegations of willful misstatement, suppression, fraud or collusion on the part of the assessee. In fact, perusal of the show cause notice would show that the entire basis of the Revenue was wrongfully availment of the credit. Mere wrongfully availment without element of mens rea and that too for the purpose of evading payment of duly would not be sufficient to impose penalty. The adjudicating authority, without any basis or evidence, merelymechanically recorded that the assessee had, by reason of willful misstatement, suppression of fact or in contravention of the provisions of the Rules, evaded payment of central excise duty. He was not even sure whether this was a case of willful miss
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how cause notice itself. A copy of the letter dated 07.09.2007 was also on record, in which, the assessee had furnished detailed statement of CENVAT credit availed along with copies of invoices.
5. Extended period of limitation for recovery of duty of excise not paid, not levied or short paid or short levied or erroneously refunded would be available to the department only if such event was by reason of fraud, collusion, willful misstatement, suppression of facts or contravention of any of the provisions of the Act or the Rules with intent to evade payment of duty. It is under similar circumstances that the penalty under section 11AC of the Act would attach.
6. In the present case, none of the factors mentioned above were established. The Tribunal in plain terms held that there was neither any suppression nor any contravention on the part of the assessee. Full facts were placed before the department and within its knowledge.
7. No question of law arises. Tax Appeal is dismissed.
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