2013 (11) TMI 286 - AT - Central Excise

Bar of Limitation Waiver of Pre-deposit - Held that - The disputed amount of cenvat credit was taken in May 2007, show cause notice has been issued in October 2008 after the expiry of normal period of limitation - in the ER-I return for May 2007 filed in June 2007, the availment of cenvat credit on M.S. Angles etc. has been fully declared and taking into account of this fact only, the Commissioner (Appeals) has given a clear finding that there is no suppression of any fact on the part of the appellant - the longer limitation period under proviso to Section 11A(c) would also not be applicable - the appellant have a strong prima facie case in their favour on limitation - The requirement of pre-deposit of cenvat credit demand and interest waived for hearing of the appeal and recovery stayed till the disposal of the appeal - Stay granted.

Issues involved:
1. Eligibility of cenvat credit for iron and steel products
2. Allegation of incorrect cenvat credit claim
3. Penalty imposition for cenvat credit claim
4. Limitation period for issuing show cause notice

Eligibility of cenvat credit for iron and steel products:
The appellant, engaged in manufacturing iron and steel products falling under chapter 72 of the Central Excise Tariff, claimed cenvat credit for inputs and capital goods under the Cenvat Credit Rules, 2004. An allegation was made against them for taking cenvat credit amounting to Rs.3,75,380 in May 2007 for items like MS Angle, Channel, Joints, Plates, and MS Bars, which they were deemed ineligible for. The appellant argued that these steel items were used in the fabrication of furnace and cooling bed, supported by a Chartered Engineer's certificate. However, the original adjudicating authority upheld the demand, imposed interest, and a penalty equal to the amount.

Allegation of incorrect cenvat credit claim:
The Commissioner (Appeals) upheld the cenvat credit demand but set aside the penalty, ruling that there was no suppression on the appellant's part. The show cause notice was issued in October 2008, after the normal limitation period had expired, even though the disputed cenvat credit was claimed in May 2007. The ER-I return for May 2007, filed in June 2007, had fully declared the availment of the cenvat credit on M.S. Angles, etc. This fact led the Commissioner to conclude that there was no suppression of any material fact by the appellant. Consequently, the longer limitation period under the proviso to Section 11A(c) was deemed inapplicable, favoring the appellant on the limitation issue.

Penalty imposition for cenvat credit claim:
The penalty imposed by the original adjudicating authority was set aside by the Commissioner (Appeals) due to the absence of suppression on the appellant's part. The appellant was found to have a strong prima facie case in their favor concerning the limitation period. As a result, the requirement for pre-deposit of the cenvat credit demand and interest was waived for the appeal hearing, and the recovery was stayed until the appeal's disposal. The stay application was allowed based on the findings regarding the limitation issue.

This judgment primarily addresses the eligibility of cenvat credit for specific iron and steel products, the incorrect cenvat credit claim made by the appellant, the penalty imposition, and the limitation period for issuing the show cause notice. The decision favored the appellant on the limitation issue, leading to the waiver of pre-deposit and stay of recovery until the appeal's resolution.

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