2019 (7) TMI 1791 - AT - Central Excise

Short payment of Central Excise Duty - Clearance of Cement - basic ground taken by the Department while raising the demand is that the duty applicable in respect of Non-Trade Sales is self assessed by the appellant on MRP basis that the direct sales (Non Trade Sales) were earlier assessed by the appellant on the specific rate as applicable under Sl.No. 1C of the Notification No. 4/2007 CE dated 01.03.2007 - HELD THAT - The adjudicating authority need to examine the claim made by the learned advocate for the appellant whereunder they have submitted nearly two dozen invoices covering the period of demand i.e. 1.1.2008 to 28.2.2011 from which it has been shown that the clearances were actually made to the Institutional buyers who fall under the category of Non Trade buyers and they have rightly paid Central Excise duty as applicable under Sl. No. 1C of Notification No. 4/2007 dated 01.03.2007. Since the basic ground of show cause notice is that the appellants have made clearance to the Institutional buyers under Sl. No. 1 A rather than 1 C of the Notification No. 04/2007 same can be verified from the claim made by the appellant that the clearances have been actually made under Sl. No. 1 C of Notification No. 4/2007 and not under Sl. No. 1 A. As it is already explained with regard to Universal Cables that if Universal Cable fall under the category of Non Trade Sales (Institutional buyer) they need to pay Central Excise duty under Sl. No. 1C and if they are not actual Institutional user of the cement the Central Excise duty can be paid by them under Sl. No. 1A of the Notification No. 4/2007. This aspect also need to be verified at the Commissionerate level. The matter needs a detailed verification and examination of claims made by the appellant at the field level the appeal is remanded back to the original adjudicating authority for necessary verification. Time limitation of Show cause notice - HELD THAT - There is a substance in the claim made by the advocate that the extended period of demand under section 11 A of the Central Excise Act 1944 is not invokable in the facts and circumstances of this case. However since the entire matter is being remanded back it is expected that the learned adjudicating authority will examine the issue of limitation also in detail. Appeal allowed by way of remand.

Summary

Issues:
1. Assessment of Central Excise duty on cement sales to industrial/institutional buyers under the correct notification.
2. Allegations of deliberate short payment of Central Excise duty.
3. Applicability of time limitation for issuing Show Cause Notice.

Issue 1: The appellant contested the assessment of Central Excise duty on cement sales to industrial/institutional buyers, claiming they correctly paid duty under Sl. No. 1C of Notification No. 4/2007, contrary to the Department's assertion of duty under Sl. No. 1A. The Tribunal examined invoices and found that the appellant indeed paid duty as per the correct notification for sales to institutional buyers, supporting the appellant's claim. However, for sales to M/s. Universal Cables Ltd., further verification was deemed necessary to determine the correct duty rate based on the buyer's classification as an institutional user or general buyer.

Issue 2: The Department alleged deliberate short payment of Central Excise duty amounting to ?3,96,56,203 by the appellant. The Tribunal concluded that the appellant's assessment and payment of duty for institutional buyers appeared correct based on the invoices submitted. The matter was remanded to the adjudicating authority for detailed verification, emphasizing the need to establish the buyer's classification for accurate duty assessment.

Issue 3: Regarding the time limitation for the Show Cause Notice, the Tribunal noted that similar issues had been previously adjudicated by the Commissioner, and the appellant's unit had undergone regular audits since 2008. Prima facie, the Tribunal found merit in the appellant's argument that the extended period of demand under section 11 A of the Central Excise Act, 1944 might not be applicable. However, the issue of limitation was to be examined in detail during the remand process, considering the facts presented.

In conclusion, the Tribunal allowed the appeal by remanding the case to the original adjudicating authority for further verification and examination, particularly regarding the correct duty assessment for sales to specific buyers and the applicability of time limitation for the Show Cause Notice. The decision highlighted the need for detailed scrutiny and verification at the field level to address the issues raised in the appeal effectively.