2010 (8) TMI 800 - AT - Central Excise

Extended period of limitation - revenue neutrality - CENVAT credit - clearance of input to sister unit - Held that - it is a case of the appellant that whatever duty they will pay, credit of the same is available to their sister unit which is not in dispute. Such situation is of revenue neutrality - in case of revenue neutrality, extended period is not invokable - for the period from December 2001 to December 2005 the SCN has been issued on 4th January 2007 which is beyond the period of one year, the extended period is not invokable in this case being the situation of revenue neutrality - appeal allowed - decided in favor of appellant.

Summary

Issues:
Appeal against duty demand, interest, and penalty confirmation. Barred by limitation due to the period involved. Revenue neutrality argument. Extended period invokability.

Analysis:
The appeal in this case was filed by M/s. Indian Oil Corporation Ltd. against the confirmation of duty demand, interest, and penalty imposed by lower authorities. The appellant had been taking CENVAT credit on various inputs, some of which were cleared to their other units without paying the duty or declaring the issue of invoices to the department. Upon being pointed out by the department, the duty was paid, and a show-cause notice was issued. The Commissioner (Appeals) confirmed the duty and penalty, leading the appellants to challenge this decision.

The main argument presented by the appellant's advocate was that the show-cause notice issued on 4th January 2007 was beyond the period involved (December 2001 to December 2005), rendering it time-barred. The advocate contended that the extended period was not applicable due to revenue neutrality, citing various precedents. The Tribunal had previously held that in cases of revenue neutrality, the extended period is not invokable. The advocate referenced cases such as CCE & C, Vadodara-II v. Indeos ABS Ltd. and Tenneco RC India Pvt. Ltd. to support the argument that when duty paid by the appellants is available as credit to their sister unit, the demand is not sustainable.

After considering the submissions, the judge found that the situation indeed fell under revenue neutrality, as whatever duty the appellants paid was available as credit to their sister unit. Based on the precedents cited and the principle of revenue neutrality, the extended period was deemed not invokable in this case. Consequently, the impugned order confirming duty demand and penalty was set aside, and the appeal was allowed with any consequential relief.

In conclusion, the judgment revolved around the issues of duty demand, interest, and penalty confirmation, the limitation period, and the concept of revenue neutrality. The decision highlighted the application of revenue neutrality in determining the invokability of the extended period and ultimately favored the appellant based on this principle.