2008 (3) TMI 593 - AT - Central Excise

CENVAT credit - suppression of facts - whether the Cenvat credit is admissible on Bill of Entry wherein duty has been paid through DEPB Scheme? - Held that - the Tribunal in the case of Polyhose India Pvt. Ltd. v. Commissioner 2002 (11) TMI 164 - CEGAT, CHENNAI passed by the Single Member Bench took the view that Modvat credit can be taken on the CVD by debit in the DEPB - it cannot be said that the appellant was withholding information deliberately with intent to evade payment of duty. So, the payment of duty for the extended period of limitation cannot be invoked - demand set aside on the ground of limitation - appeal allowed - decided in favor of appellant.

Summary

Issues:
1. Admissibility of Cenvat credit on Bill of Entry paid through DEPB Scheme.
2. Invocation of extended period of limitation for demand of duty.
3. Entitlement to Modvat credit on Bill of Entry with CVD paid through DEPB Scheme.

Analysis:
1. The issue at hand is whether Cenvat credit is permissible on a Bill of Entry where duty was paid through the DEPB Scheme. The appellant's representative referred to a Tribunal case where the issue was decided against the assessee. The appellant argued that they availed credit based on duly recorded Bills of Entry in their records, indicating no intent to evade duty. The appellant cited Supreme Court decisions to support their stance. On the other hand, the Revenue representative supported the Commissioner's findings, asserting that the extended period was rightly invoked due to alleged suppression of facts by the appellants.

2. The Tribunal examined the records and noted that the appellants had availed Cenvat credit against a specific Bill of Entry paid through the DEPB Scheme. Allegations were made regarding inadmissible credit and lack of disclosure to the Department, leading to the invocation of the extended period of limitation. However, the Tribunal found that the appellants had recorded the Bill of Entry in their statutory records, undermining the claim of non-disclosure.

3. The issue revolved around the entitlement to Modvat credit on a Bill of Entry where CVD was paid through the DEPB Scheme. Conflicting views were resolved by a Larger Bench decision. The Tribunal highlighted that the appellants had taken credit before the Larger Bench's ruling. Citing Supreme Court precedents, the Tribunal emphasized the need for specific allegations of fraud or suppression for invoking an extended period of limitation. Previous Tribunal decisions supported the appellants' position, indicating no deliberate withholding of information to evade duty. Consequently, demands of duty and penalties were set aside based on the limitation grounds, and the appeals were allowed with consequential relief.