M\/s. KLM Pack Versus The Commissioner GST & CCE Pondicherry
Central Excise
2019 (3) TMI 515 – CESTAT CHENNAI – TMI
CESTAT CHENNAI – AT
Dated:- 6-3-2019
Appeal No. E\/42758\/2018 – FINAL ORDER No. 40406\/2019
Central Excise
Shri P. Dinesha, Member (Judicial)
\nShri R. Janardhanan Pillai, Consultant for the Appellant
\nShri L. Nandakumar, AC (AR) for the Respondent
\nORDER
\nThis is the second round of litigation before this Tribunal. Appellant is in appeal against the order of the Commissioner of GST & CE (Appeals-I) dated 28.09.2018.
\n2. Ld. Consultant, Shri R. Janardhanan Pillai appearing for the appellant made an elaborate oral and written submissions, which are recorded as under:-
\n * He submitted that appellant cleared the goods on payment of duty by availing Cenvat credit in accordance with law. But, after 01.04.2005 they opted for availing the full benefit of exemption under Notification No. 8\/2003. He submitted that in terms of Rule 11 (2) of the Cenvat Credit Rule<\/p>\n
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Plain text (Extract) only<\/strong> = = = = = = = =<\/p>\n vide Final Order No. 1308\/2010 dated 28.12.2010. But, the Commissioner (Appeals) has rejected vide impugned order without addressing main grounds canvassed before it. = = = = = = = =<\/p>\n Plain text (Extract) only<\/strong> = = = = = = = =<\/p>\n een expressed:- = = = = = = = =<\/p>\n Plain text (Extract) only<\/strong> = = = = = = = =<\/p>\n ue of Rs. 14,80,017.31 less value of talc …..thereby the duty payable ……on 01.04.2005 works out to only Rs. 2,20,479\/- as given below. Out of which we have already paid Rs. 1,15,444\/-. So balance amount of duty, if any to be paid by us would be only Rs. 1,05,035.00…..-.” = = = = = = = =<\/p>\n Plain text (Extract) only<\/strong> = = = = = = = =<\/p>\n ding their request for destruction of rejected goods, there is no evidence on record placed by the appellant before me….. The appellant has also not made this as a plea before me in their submissions…..” = = = = = = = =<\/p>\n Plain text (Extract) only<\/strong> = = = = = = = =<\/p>\n","protected":false},"excerpt":{"rendered":" M\/s. KLM Pack Versus The Commissioner GST & CCE PondicherryCentral Excise2019 (3) TMI 515 – CESTAT CHENNAI – TMICESTAT CHENNAI – ATDated:- 6-3-2019Appeal No. E\/42758\/2018 – FINAL ORDER No. 40406\/2019Central ExciseShri P. Dinesha, Member (Judicial) Shri R. Janardhanan Pillai, Consultant for the Appellant Shri L. Nandakumar, AC (AR) for the Respondent ORDER This is the … Continue reading “M\/s. KLM Pack Versus The Commissioner GST & CCE Pondicherry”<\/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-17250","post","type-post","status-publish","format-standard","hentry"],"_links":{"self":[{"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=\/wp\/v2\/posts\/17250","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=17250"}],"version-history":[{"count":0,"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=\/wp\/v2\/posts\/17250\/revisions"}],"wp:attachment":[{"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=17250"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=17250"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=17250"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}
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\n * The actual duty liability was Rs. 2,79,578\/- against which Rs. 1,15,444\/- having already been paid, the SCN should have proposed the demand of the balance alone but, the same having proposed to recover the entire amount of Rs. 2,79,578\/- is therefore bad being contrary to Section 11 2B of the Act.
\n * He submitted that the present impugned order is not sustainable either on the ground of demand being hit by limitation or on the ground of merits. He submitted that the period involved is 01.04.2005, but SCN was issued only on 09.01.2008. The record maintained by the assessee reflects the credit so availed and there is no allegation that duty was not paid when payable, as per law and the assessee has not filed any statutory returns, etc. It is a settled position of law that when statutory returns have been filed properly<\/p>\n
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\na) Dai Ichi Karkaria Ltd. Vs. CCE1999 (112) ELT 353 (S.C.)
\nb) Eltek Circuits Vs. CCE2017 (352) ELT 231
\nc) Sundeep Electrodes Pvt Ltd.2017 (349) ELT 781 (Tri. All.)
\nd) CCE Vs. Gokuldas2011 (270) ELT 351 (Kar.)
\ne) Tansi Fabrication Works2018 (17) GSTL 429 (Mad.)
\nLd. Consultant submitted that in the present case also there is no allegation that the credit taken was not legal and no allegation of wrong availment of credit. Suppression of fact is not proved as the records maintained by the assessee reflected the transactions made where there should not be any penal action and invocation of extended period of limitation.
\n3. Per contra, Ld. DR, Shri L. Nandakumar, AC, supported the findings of the lower authorities. He drew my attention to the Order of the Commissioner (Appeals) at paragraphs 8-10 to say that remand order dated 28.12.2010 spelt out two specific areas for examination and decision, regarding invocation of extended period and destruction of rejected goods.<\/p>\n
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\n4.3 The admission as to “balance if any, to be paid” appears to be graceful, which should have been done voluntarily and without waiting for the SCN. But the fact remains that there was short payment of duty as on the date of their reply to SCN. This is sufficient proof of non-payment of duty\/withholding\/short payment of duty which is paid after SCN and after admitting their liability to pay “balance if any, to be paid”. State is entitled to get what is rightfully due to it, hece a SCN came to be issued in this case demanding duty. The above fact of admission of “balance if any, to be paid” by the appellant has only proved suppression and hence, it is too difficult to accept appellant's proposition that there <\/p>\n
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\n4.6 The date of appellant's reply, as indicated above is 13.03.2008 whereas the date of impugned order (second round) is 26.06.2018; the appellant apparently neither destroyed, nor reversed and nor has it paid the balance, as admitted by it which is extracted in the above paragraphs. Having not furnished any evidence as required or as expected, even for over 10 years, it cannot blame the revenue when in fact its own acts and omissions are not beyond suspicion.
\n4.7 Rule 11 (2) prescribes guidelines to be followed in the case of a manufacturer opting for exemption under CENVAT scheme, under Notification No. 8\/2003 dated 01.03.2003. In the case on hand, there is an observation by the adjudicating authority that the value of closing stock as on 31.03.2005 as indicated by the appellan<\/p>\n
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