2012 (12) TMI 469 - AT - Central Excise

Period of limitation - period of dispute in is from 19-12-2006 to 1-5-2008 - date of show cause notice is 26-8-2009 Held that - Show cause notice would be within time limit only if extended period under proviso to Section 11A(1) is available for which it has to be proved that non reversal of proportionate Cenvat credit was due to wilful mis-declaration, fraud, suppression of facts, etc. on the part of the Appellant. But these allegations can not be made against the appellant - When the Appellant were declaring clearance of Zinc dross/ash without payment of duty as exempted goods in the ER-I Return, they can not be accused of suppressing the relevant information, more so, when there are a series of instructions of the Board directing field offices to scrutinize the ER-I Returns carefully - longer limitation period under provisions of Section 11A(1) is not available to the Department and show cause notice dated 26-8-2009 is time barred. For the same reason, the penalty under Section 11AC is also not imposable - imposition of penalty under Section 11AC is, therefore, not sustainable.

Summary

Issues:
1. Interpretation of Rule 6(3) of Cenvat Credit Rules, 2004 regarding clearance of zinc dross.
2. Applicability of Rule 6(1) disallowing Cenvat Credit in respect of exempted goods.
3. Time bar for demand and penalty under Rule 15(2) of Cenvat Credit Rules.

Analysis:
1. The case involved a dispute regarding the clearance of zinc dross without payment of duty, based on the classification of zinc dross as a non-excisable product following a Supreme Court judgment. The appellant argued that maintaining separate accounts for inputs used in manufacturing both dutiable final products and non-excisable zinc dross was impractical. The Department contended that zinc dross should be treated as an exempted final product, necessitating payment under Rule 6(3) of Cenvat Credit Rules, 2004. A show cause notice was issued for recovery and penalty, upheld by the Assistant Commissioner and CCE (Appeals).

2. The Tribunal noted that Rule 6(2) and 6(3) of Cenvat Credit Rules apply when Cenvat credit is availed for inputs used in both dutiable and exempted goods. However, as zinc dross was non-excisable during the dispute period, it did not fall under the definition of "exempted goods." Therefore, the provisions of Rule 6(1), 6(2), and 6(3) were deemed inapplicable. The Tribunal disagreed with the Commissioner (Appeals) regarding the applicability of Rule 6(3) to zinc dross.

3. Regarding the time bar issue, the show cause notice was issued beyond the normal time limit, invoking the extended period under Section 11A(1) based on alleged misdeclaration and suppression of facts. However, the appellant's declaration of zinc dross clearance as exempted goods in their returns did not constitute suppression, especially considering the Board's instructions to scrutinize such returns. Consequently, the longer limitation period and penalty under Section 11AC were deemed inapplicable, leading to the setting aside of the demand and penalty upheld by the impugned order.

In conclusion, the Tribunal allowed the appeal, setting aside the impugned order based on the non-applicability of Rule 6 provisions to zinc dross, the absence of time-bar justification for the demand and penalty, and the appellant's compliance with declaration requirements.