2010 (12) TMI 1001 - AT - Central Excise

CENVAT credit on basic Customs Duty and Special Additional Duty - Demand of credit along with interest and penalties questioned on the ground of time-bar - case of the Revenue that credit was availed during the period June 2003 to March 2004 and Show Cause Notice was issued on 4-6-2008 demanding duty after denying credit and for imposition of penalty alleging suppression with intent to evade payment of duty - Respondent argument is that demand is time barred as held by the Commissioner (Appeals) on the ground that Audit memos were issued in the year 2006 and therefore after 2006 there is no suppression on the part of the Respondent - Held that - Statements of merchant manufacturers who appeared indicate that they had agreed that they had sent the grey fabrics to the respondent and received the resultant processed fabrics, without cover of central excise invoices and without payment of central excise duty leviable thereon during the relevant period. Thus, in the facts of the present case suppression stands admitted by the respondent assessee and established by evidence on record and as a natural corollary, the proviso to sub-section (1) of Section 11A would stand attracted. In the circumstances, the impugned order of the Tribunal whereby it has been held that the show cause notice issued beyond the period of six months from the date of knowledge is barred by limitation is clearly contrary to the provisions of Section 11A of the Act and as such cannot be sustained. No merit in the contention of the Respondents that the Revenue was aware of the irregularities in the year 2006 when Audit memos were issued hence the allegation of suppression is not sustainable. The impugned order is set aside and Appeal filed by the Revenue is allowed and order passed by the adjudicating authority is restored. Against assessee.

Summary

Issues Involved:
1. Time-bar for the demand of credit along with interest and penalties.
2. Applicability of CENVAT Credit Rules regarding Customs Duty and Special Additional Duty.
3. Allegation of suppression with intent to evade payment of duty.

Detailed Analysis:

1. Time-bar for the demand of credit along with interest and penalties:
The central issue in this case was whether the demand for credit along with interest and penalties was time-barred. The Commissioner (Appeals) had set aside the demand on the ground of time-bar, noting that the Audit Notes issued in 2006 made the Revenue aware of the irregularities, thus negating the allegation of suppression.

The Revenue contended that the findings of the Commissioner (Appeals) were not sustainable, citing the Hon'ble Gujarat High Court decision in the case of CCE, Surat-I v. Neminath Fabrics Pvt. Ltd. which held that suppression is not obliterated merely because the department acquired knowledge of irregularities.

The Tribunal found that as per the Gujarat High Court's ruling, the period of limitation for issuing a Show Cause Notice extends to five years in cases involving fraud, collusion, or suppression with intent to evade duty. The Tribunal concluded that the concept of knowledge by the departmental authority does not affect the extended limitation period provided under the statute.

2. Applicability of CENVAT Credit Rules regarding Customs Duty and Special Additional Duty:
The Respondents availed credit in respect of Customs Duty and Special Additional Duty on imported goods during the period from June 2003 to March 2004. According to the CENVAT Credit Rules, such credits were not permissible. The Respondents did not dispute this issue but argued that the demand was time-barred.

The Tribunal reaffirmed that the CENVAT Credit Rules clearly disallowed the credit of Customs Duty and Special Additional Duty, and the Respondents' availing of such credits was indeed incorrect.

3. Allegation of suppression with intent to evade payment of duty:
The Show Cause Notice issued on 4-6-2008 alleged suppression with intent to evade payment of duty. The Respondents argued that since the Audit Notes in 2006 had already pointed out the irregularities, there was no suppression after that point.

However, the Tribunal referred to the Gujarat High Court's decision, which clarified that the extended limitation period of five years applies as long as suppression is established, regardless of the department's subsequent knowledge of the irregularities. The Tribunal emphasized that the statute prescribes a fixed period of limitation, and the concept of knowledge does not negate the established suppression.

Conclusion:
The Tribunal found that the decision of the Hon'ble Gujarat High Court in CCE, Surat-I v. Neminath Fabrics Pvt. Ltd. was fully applicable. It held that the issuance of the Show Cause Notice within five years was valid due to the established suppression. Consequently, the Tribunal set aside the impugned order of the Commissioner (Appeals) and restored the order passed by the adjudicating authority, thus allowing the Revenue's appeal.

The judgment was pronounced and dictated in the open court, emphasizing the legal principle that knowledge of irregularities by the department does not nullify the extended limitation period for cases involving suppression with intent to evade duty.