M\/s. Shree Ambiga Sugars Ltd. Versus Commissioner of GST & Central Excise
Central Excise
2019 (2) TMI 1297 – CESTAT CHENNAI – TMI
CESTAT CHENNAI – AT
Dated:- 19-2-2019
E\/Misc. \/41964\/2017 & E\/535\/2012 – Final Order No. 40317 \/ 2019
Central Excise
Hon'ble Ms. Sulekha Beevi C.S., Member ( Judicial ) And Hon'ble Shri Madhu Mohan Damodhar, Member ( Technical )
\nMs. P. Kanthi Visalakshmi, Advocate for the Appellant
\nMs. T. Usha Devi, DC (AR) for the Respondent
\nORDER
\nPer Bench
\nThe appellants are engaged in the manufacture of sugar and molasses and are registered with the Central Excise Department. They also have cogeneration power plant that was functioning under the name and style of 'M\/s. Supreme Renewable Energy Ltd.'. The said power plant which was a separate entity later got amalgamated with the appellant with effect from 1.4.2003. After such amalgamation, they are functioning as sugar division and power division of M\/s. Shree Ambiga Sugars Ltd., the appellant he<\/p>\n
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Plain text (Extract) only<\/strong> = = = = = = = =<\/p>\n d, interest and imposed penalties and also ordered appropriation of the amount paid \/ reversed by the appellant. In appeal, Commissioner (Appeals) upheld the same. Hence this appeal. = = = = = = = =<\/p>\n Plain text (Extract) only<\/strong> = = = = = = = =<\/p>\n eneration of electricity. The Hon'ble Supreme Court in the case of Commissioner of Central Excise, Vadodara Vs. Gujarat State Fertilizers and Chemicals Ltd. – 2008 (229) ELT 9 (SC) and Commissioner of Central Excise Vs. Gujarat Narmada Fertilizers co. Ltd. – 2009 (240) ELT 661 (SC), the Hon'ble Apex Court had taken a different view. In the case of Commissioner of Central Excise, Vadodara Vs. Gujarat Narmada Valley Fertilizers Co. Ltd. – 2012 (286) ELT 481 (SC), the Apex Court has referred the matter to the Larger Bench, which is pending decision. That the issue being contentious and interpretational in nature, invocation of extended period cannot sustain. Apart from mere allegation that appellant suppressed facts, there is no positive act brought out by the department to establish that there is suppression on the part of the appellant with intent to evade payment of duty \/ tax. She relied upon the judgment of the Hon'ble Supreme Court in the case of Cosmic Dye Chemical Vs. Collector of<\/p>\n = = = = = = = =<\/p>\n Plain text (Extract) only<\/strong> = = = = = = = =<\/p>\n ax. The Commissioner (Appeals) has discussed the same in para 6 of the impugned order. She also relied upon the judgment of the Hon'ble Supreme Court in the case of Maruti Suzuki India Limited Vs. Commissioner of Central Excise, Delhi – III – 2017 (5) GSTL 18 (P&H) to argue that CENVAT credit on inputs and input service is not eligible in respect of the electricity that is wheeled out of the factory. = = = = = = = =<\/p>\n Plain text (Extract) only<\/strong> = = = = = = = =<\/p>\n n rightly invoked.” = = = = = = = =<\/p>\n Plain text (Extract) only<\/strong> = = = = = = = =<\/p>\n","protected":false},"excerpt":{"rendered":" M\/s. Shree Ambiga Sugars Ltd. Versus Commissioner of GST & Central ExciseCentral Excise2019 (2) TMI 1297 – CESTAT CHENNAI – TMICESTAT CHENNAI – ATDated:- 19-2-2019E\/Misc. \/41964\/2017 & E\/535\/2012 – Final Order No. 40317 \/ 2019Central ExciseHon'ble Ms. Sulekha Beevi C.S., Member ( Judicial ) And Hon'ble Shri Madhu Mohan Damodhar, Member ( Technical ) Ms. … Continue reading “M\/s. Shree Ambiga Sugars Ltd. Versus Commissioner of GST & Central Excise”<\/span><\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[],"tags":[],"class_list":["post-16951","post","type-post","status-publish","format-standard","hentry"],"_links":{"self":[{"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=\/wp\/v2\/posts\/16951","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=16951"}],"version-history":[{"count":0,"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=\/wp\/v2\/posts\/16951\/revisions"}],"wp:attachment":[{"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=16951"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=16951"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=16951"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}
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\n2. On behalf of the appellant, ld. counsel Ms. P. Kanthi Visalakshmi appeared and argued the matter. She submitted that the period involved is from April 2004 to May 2009 and the show cause notice dated 4.5.2010 has been issued invoking the extended period of limitation. In fact, the appellant had availed the CENVAT credit on the inputs, input services for production of electricity which is used in the manufacturing activity as well as electricity is wheeled out to TNEB on the bonafide belief that the credit is eligible. The show cause notice has been issued by the department only after the decision of the Hon'ble Supreme Court in the case of Maruti Suzuki Ltd. Vs. Commissioner of Central Excise – 2009 (240) ELT 641 (SC). It is submitted by her that the appellant was filing returns and reflecting the cred<\/p>\n
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\n4. Heard both sides.
\n5. The issue is with regard to the demand raised alleging wrong availment of CENVAT credit on inputs and inputs services, capital goods used for production of electricity which is sold to TNEB. The Hon'ble Supreme Court in the case of Maruti Suzuki Ltd. – 2009 (240) ELT 641 (SC) has held that the credit in respect of input services which is used for electricity that is sold outside is not eligible for credit. Applying this decision, the appellant does not have a case on merits. The ld. counsel for appellant has argued only on the ground of limitation. In para 6 of th<\/p>\n
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\n6. From the above, it can be seen that the only allegation of suppression pointed against the appellant is that they failed to reverse the credit upon delivery of the judgment of the Hon'ble Apex Court in Maruti Suzuki Ltd. – 2009 9240) ELT 641 (SC). It is very much clear that the show cause notice has been issued after the decision rendered by the Apex Court in the said case. The department has no case that the appellant had not disclosed the credit availed in their ER-1 returns. Further, the appellant has reversed the entire credit on 31.1.2011. All these would go to show that there was no intention to evade payment of duty or tax less any positive act of suppression on the part of the appellant. We therefore hold that the department has miserably failed to establish with cogent evidence that the appellant is guilty of suppression of facts with intention to evade payment of duty so as to invoke the extended period of limitation. The show cause notice issued to th<\/p>\n
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