2016 (3) TMI 987 - AT - Customs

Period of limitation - No fraud or suppression or wilful mis-statement - Held that - bill of entry as per annexure to the show cause notice was filed on 6.12.1994 and the show cause notice was issued on 26.3.1999, which is clearly barred by limitation as no fraud or suppression or wilful concealment has been alleged in the show cause notice. Availment of Modvat credit - Transferor of advance licence - Import duty cannot be confirmed and demanded from the transferor who is not the importer - Appellant failed to produce documentary evidence to prove that they did not avail modvat credit on inputs - Held that - the case is covered by the judgment of this Tribunal in the case of Sunbeam Garments Pvt. Ltd. vs. CC, Kandla 2013 (5) TMI 382 - CESTAT, AHMEDABAD in which the judgment of the Hon ble Supreme Court in the case of CC vs. Auto Ignition Ltd. 2008 (4) TMI 43 - SUPREME COURT has been relied on wherein the onus to prove that the assessee has availed of the modvat credit was on the Revenue and the Revenue has failed to discharge that onus and, therefore, the impugned order is liable to be set aside. - Decided in favour of appellant with consequential relief

Summary

Issues involved:
1. Time-barred demand of duty amount.
2. Liability of transferor for import duty.
3. Burden of proof regarding availing modvat credit on inputs.

Analysis:
1. Time-barred demand of duty amount:
The appeal challenged the order of the Commissioner confirming a demand of Rs. 2,61,402/- and imposing a penalty of Rs. 25,000/- on the appellant, along with interest. The appellant argued that the show cause notice issued on 26.3.1999, concerning bills of entry dated 6.12.1994, was time-barred as no fraud, suppression, or wilful concealment was alleged. The Tribunal concurred, stating that the notice was clearly beyond the limitation period without any such allegations.

2. Liability of transferor for import duty:
The appellant contended that they were not the importer but a transferor of an advance license, and therefore, import duty could not be demanded from them. The Tribunal agreed, noting that the duty amount was confirmed with respect to bills of entry filed by the importer M/s. Premier Sales, not the appellant. The Tribunal emphasized that the importer had been exonerated, and it was incorrect to fasten the duty liability on the appellant, who was not the importer.

3. Burden of proof regarding availing modvat credit on inputs:
Regarding the issue of proving non-availment of modvat credit on inputs, the appellant argued that the burden of proof lay with the Revenue, which had failed to establish the same. Citing precedent, the appellant relied on a Tribunal decision in a similar case where it was held that the onus to prove modvat credit availed rested with the Revenue. The Tribunal found merit in this argument, referencing a Supreme Court judgment, and concluded that the Revenue had not discharged its burden of proof. Consequently, the impugned order was set aside, and the appeal was allowed with consequential relief.

This comprehensive analysis of the judgment highlights the key issues raised, the arguments presented by the parties, and the Tribunal's reasoning leading to the decision in favor of the appellant.