2014 (7) TMI 440 - AT - Central Excise

Availment of CENVAT Credit - Original copy of documents not available - Additional Commissioner dropped demand as barred by limitation - Commissioner invoked extended period of limitation - Willful misstatement of facts - proviso to Section 11A (1) has not been invoked in the show cause notice - Whether the demand of duty is barred by limitation on the grounds of non-mentioning of proviso to Section 11-A in the show cause notice or such non mention has to be held as of no consequence - Held that - Appellant have advanced the argument that since the proviso to Section 11 A was not specifically mentioned in the show cause notice, the demand should be held has barred by limitation. However, proviso to section 11A is part and parcel of section 11A. Merely because it was not specifically mentioned in the show cause notice when the allegation of suppression are clearly specified and the demand of duty is being raised under section 11A, non-mentioning of the specific proviso of section 11A will not the vitiate the proceedings as long as the charges are clearly brought out in the show cause notice. Not only that section 11A, includes the proviso to the said section and the entire section stands mentioned in the show cause notice, it has to be held that the provisos of the said section also get invoked - Decided against assessee.

Summary

Issues:
1. Time-barring of the demand due to non-mentioning of proviso to Section 11-A in the show cause notice.

Analysis:
The case involved a dispute regarding the time-barring of a demand for recovery of wrongly availed Cenvat credit. The appellant had taken Cenvat credit without original duty paying documents, leading to a show cause notice being issued for recovery and penalty imposition. The Additional Commissioner initially dropped the entire Cenvat credit demand, citing it as time-barred. However, the Commissioner (Appeals) reversed this decision, confirming the demand and penalty invoking the extended period. The key contention was whether the demand of duty was time-barred due to the non-mentioning of the proviso to Section 11-A in the show cause notice.

The appellant argued that the demand was time-barred as the proviso to Section 11-A was not invoked in the show cause notice. They claimed there was no suppression of relevant information and thus no basis for invoking the extended period. On the other hand, the Departmental Representative relied on previous tribunal judgments, alleging wilful misstatement by the appellant, justifying the extended period invocation. The central question was whether the non-mentioning of the proviso to Section 11-A in the show cause notice would render the demand time-barred.

The Additional Commissioner had initially held that the demand was time-barred due to the non-invocation of the proviso to Section 11-A in the show cause notice. However, the Commissioner (Appeals) reversed this decision, emphasizing the intentional misstatement by the appellant and the grounds for invoking the extended period. The Commissioner (Appeals) highlighted that the mentioning of Section 11-A in the show cause notice covered the proviso itself, making the demand valid. The appellant's argument that the non-specific mention of the proviso vitiated the proceedings was rejected, as Section 11-A encompassed the proviso, and the charges were clearly brought out in the notice. Ultimately, the appeal was dismissed, upholding the demand and penalty imposed by the Commissioner (Appeals).

In conclusion, the judgment resolved the issue of time-barring the demand based on the non-mentioning of the proviso to Section 11-A in the show cause notice. The decision clarified that the mention of Section 11-A sufficed to invoke the proviso, validating the demand and penalty imposed. The case underscored the importance of clarity in show cause notices and the interpretation of statutory provisions to determine the timeliness of demands in excise matters.