2015 (10) TMI 1142 - AT - Central Excise

Denial of CENVAT Credit - credit on CVD debited from DEPB scrips - Held that - It is a selective nature of audit and cannot be established the knowledge of the Department. On perusal of the impugned order, I find that the Respondent had filed the monthly returns for the months of June, 2004 and July, 2004 under Rule 7 of Cenvat Credit Rules, and the details like Bill of entry No., date, name of the supplier, description of the goods, tariff heading No., duty paid etc. were shown. In any event, there is a detailed finding on this issue in the order of the Commissioner (Appeals). - No Reason to interfere of the order of the Commissioner (Appeals) - Appeal disposed of.

Summary

Issues:
- Appeal against order setting aside demand of duty as time-barred.
- Admissibility of CENVAT credit on CVD debited from DEPB scrips.
- Disallowance of credit based on amendment in Foreign Trade Policy.
- Selective nature of audit and knowledge of the Department.
- Time-bar for invoking extended period for demand of duty.
- Bonafide belief in availing CENVAT credit.

Analysis:
The appeal was filed by the Revenue against the order of the Commissioner (Appeals) setting aside the demand of duty as time-barred. The Respondent had availed CENVAT credit of CVD debited from DEPB scrips issued under specific notifications. The Adjudicating Authority disallowed the credit citing inadmissibility based on an amendment in the Foreign Trade Policy. The Commissioner (Appeals) overturned this decision, considering the demand of duty as barred by limitation.

The Learned Authorised Representative for the Revenue argued that there was a previous decision in favor of the Revenue during the relevant period, implying that the duty should have been paid. It was also contended that the Commissioner (Appeals) relied on a selective nature of audit, which did not establish the Department's knowledge. However, the impugned order revealed that the Respondent had filed monthly returns with detailed information, and the Commissioner (Appeals) provided a thorough finding on the issue, emphasizing the time bar.

The Commissioner (Appeals) held that although the Respondent had no case on merits, the strong case on the ground of time bar rendered the show cause notice time-barred. The audit conducted did not raise any objection regarding the CENVAT credit taken, and the show cause notice was issued after more than four years from the date of availing the credit. The absence of suppression of facts or willful mis-declaration, coupled with the bonafide belief in accordance with previous Tribunal decisions, led to the conclusion that the extended period of limitation could not be invoked, and no penalty under section 11 AC of the Act could be imposed.

In conclusion, the Appellate Tribunal found no reason to interfere with the order of the Commissioner (Appeals) and rejected the appeal filed by the Revenue, thereby disposing of the cross objection as well.