2013 (11) TMI 847 - AT - Central Excise

Time limit to issue Show cause notice after the visit of the officer - Clandestine removal of goods Held that - There has been a clandestine activity on the part of the appellant by processing and clearing of fabrics without recording the same in statutory records and without payment of duty - It is a case of fraud and suppression with intention to evade Central Excise duty - There is no provision in Central Excise law that show cause notice is required to be issued within one year from the date of visit of the Central Excise officers. Penalty to be imposable under which section in case of fraud and suppression Held that - It was a case of fraud and suppression with intention to evade Central Excise duty, therefore the correct provision applicable will be Section 11A(1A) of Central Excise Act, 1944, where appellant was also required to pay 25% penalty imposable under Section 11AC of Central Excise Act, 1944 along with interest applicable under Section 11AB of Central Excise Act, 1944 - the adjudicating authority also gave them an option to pay reduced penalty of 25% under Section 11AC of Central Excise Act, 1944 if the payments are made within one month from the date of receipt of OIO - no such option was exercised by the assesse Decided against assessee.

Summary

Issues:
Admissibility of CENVAT credit on materials used for making support structures for capital goods, imposition of penalty under Rule 15 of CENVAT Credit Rules, 2004, and charging of interest under Rule 14 of CENVAT Credit Rules, 2004.

Analysis:
1. Admissibility of CENVAT Credit on Materials for Support Structures:
The appellant contended that based on various case laws, the Cement and other items used for making support structures were admissible as CENVAT Credit. However, the Revenue argued citing judgments in favor of disallowing such credit. The Larger Bench decisions supported the Revenue's stance, leading to the disallowance of the credit amounting to Rs.62,43,271/-.

2. Imposition of Penalty under Rule 15 of CENVAT Credit Rules, 2004:
The appellant's belief in the admissibility of the credit on Cement and steel for support structures was considered bonafide. As there were conflicting views on the issue, the penalty of Rs.15 lakhs imposed under Rule 15 of CENVAT Credit Rules, 2004 was set aside, acknowledging the appellant's genuine belief during the disputed period.

3. Charging of Interest under Rule 14 of CENVAT Credit Rules, 2004:
The appellant argued against the imposition of interest, relying on specific case laws. However, the Revenue supported the charge based on the Supreme Court's decision in UoI Vs. Ind-Swift Laboratories Ltd. The Court clarified that interest is payable when CENVAT credit is taken or utilized wrongly, and the appellant was liable for interest as per Rule 14, irrespective of the utilization of the credit.

4. Final Decision:
The appeal was allowed only in part, specifically setting aside the penalty imposed under Rule 15 of CENVAT Credit Rules, 2004. The disallowance of CENVAT credit on materials for support structures was upheld, and the appellant was held liable for the interest as per the law laid down by the Supreme Court. The judgment provided a detailed analysis of the legal precedents and interpretations guiding the decisions on admissibility of credit, penalty imposition, and interest charges under the relevant CENVAT Credit Rules.

This comprehensive analysis of the judgment highlights the key legal issues, arguments presented by both parties, relevant case laws, and the final decision rendered by the Tribunal, ensuring a detailed understanding of the case.