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2011 (9) TMI 441 - AT - Central ExciseSuo motu credit or refund without sanction - In view of Sahakari Khand Udyog (2005 - TMI - 47234 - SUPREME COURT OF INDIA) all types of refund have to be filed under Section 11B of the Central Excise Act and no suo motu refund can be taken unless and until the department is satisfied that the incidence of duty has not been passed on. Capital goods cleared - Held That - there is no clear finding whether the return of the capital goods by the respondent to the supplier was actually made on payment of duty whether by way of debit in CENVAT account or otherwise in April 2006. However it is not in dispute that statutory invoices were raised on 13.02.2007 for payment of duty on the capital goods without clearance of the goods or following the Central Excise procedure. Almost soon after the raising of these invoices the respondent took suo motu credit of an equivalent amount in their CENVAT account. This conduct of the party would suggest that the raising of the invoices on 13.02.2007 was consciously done as preparatory to suo motu credit. - order-in-original does not disclose any clear finding Case remanded back.
Issues:
1. Whether the respondent irregularly took CENVAT credit on certain capital goods and later reversed it? 2. Whether the respondent's conduct of taking credit suo motu in their CENVAT account was legal? 3. Whether the extended period of limitation can be invoked due to suppression of facts by the respondent? 4. Whether the appellate Commissioner's decision on the limitation issue was correct? 5. Whether the respondent's claim of returning capital goods on payment of duty is valid? 6. Whether the original authority should reconsider the case on merits? Analysis: Issue 1: The respondent received capital goods and took CENVAT credit on them, later returning the goods to the supplier. The respondent claimed to have returned the goods on payment of duty equivalent to the credit taken. However, there was no clear finding by the lower authorities on this claim. The respondent raised invoices and paid duty on the goods, which was later reversed. The audit noted discrepancies, leading to a show-cause notice for recovery of the CENVAT credit. Issue 2: The respondent's conduct of taking credit suo motu in their CENVAT account was challenged as illegal by the Revenue. The Revenue argued that the respondent should have claimed a refund under Section 11B of the Central Excise Act instead of taking credit. The Revenue sought recovery of the amount equivalent to the credit taken illegally. Issue 3: The extended period of limitation was invoked by the Revenue due to alleged suppression of facts by the respondent regarding the CENVAT credit. The adjudicating authority confirmed the demand and imposed a penalty, which was later contested by the party. The appellate Commissioner allowed the appeal on the ground of limitation, leading to the Revenue's present appeal. Issue 4: The Revenue challenged the appellate Commissioner's decision on the limitation issue, arguing that crucial facts were disclosed late by the respondent. The Revenue contended that the show-cause notice was issued within the normal period of limitation from the date of disclosure of the fact, making the limitation defense unsustainable. Issue 5: The respondent claimed to have returned the capital goods on payment of duty, which was crucial to the substantive issue. The original authority did not provide a clear finding on this aspect. The case was remanded to the original authority for reconsideration on merits, emphasizing the need to address whether the goods were returned on payment of duty. Issue 6: The original authority was directed to reconsider the case on merits, focusing on whether the goods were returned on payment of duty. The Tribunal's Larger Bench decision in a relevant case was highlighted, emphasizing the need for a fresh decision considering all aspects. The party was to be given a reasonable opportunity to be heard. In conclusion, the appeal was disposed of with directions for the original authority to reevaluate the case on merits, particularly focusing on the crucial issue of whether the capital goods were returned on payment of duty.
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