2016 (9) TMI 39 - AT - Central Excise

Invokation of extended period of limitation - Demand of duty alongwith interest and penalty - appellant procured certain inputs from 100% EOU - credit of duty availed in excess of additional duty leviable under Section 3 of the Customs Tariff Act equivalent to duty of excise specified in Clauses (i) (ii) (iii) (iv) (v) (vi) (via) of Rule 3(1) of CCR, 2004 is irregular. Held that - the duty charged by an EOU is a duty of excise charged by 100% EOU and the amount of duty charged is one single amount and does not contain any bifurcation as to basic custom duty, additional duty of customs, etc. It is found that the invoices issued by the 100% EOU indicate excise duty as per the proviso to Section 3(1) of the Central Excise Act where only Central Excise duty has been prescribed to be calculated in a particular manner. It is also found that Revenue was wrong in further bifurcating the Central Excise duty paid into basic custom duty and education cess. Though the method used for calculating the measure of such excise duty was also to include element of customs duties but the entire duty paid on the invoices will have to be considered as Central Excise duty paid under Section 3(1) of Central Excise Act. Therefore keeping in view the various judgments cited which squarely covers the case of the appellant in his favour, the impugned order is set aside. - Decided in favour of appellant

Summary

Issues:
- Interpretation of CENVAT credit rules regarding duty paid by a 100% EOU under Central Excise Act
- Applicability of Rule 3(1) of CCR, 2004 in availing CENVAT credit
- Discrepancy in the duty charged by EOU and its bifurcation into different components
- Justification for invoking the extended period for demand and penalty

Analysis:

Interpretation of CENVAT Credit Rules:
The appeal challenged the rejection of CENVAT credit by the Commissioner (A) based on the duty paid by a 100% EOU under the Central Excise Act. The appellant argued that the duty paid by the EOU is a duty of excise, and Rule 3(1) of CCR, 2004 allows CENVAT credit for the whole duty charged by the EOU. The appellant contended that the duty paid should not be dissected into different components like basic custom duty. The appellant cited relevant judgments supporting their interpretation, emphasizing that the duty paid is solely excise duty, not customs duty. The Tribunal agreed with the appellant's interpretation and set aside the impugned order, allowing the appeal in favor of the appellant.

Applicability of Rule 3(1) of CCR, 2004:
The key contention revolved around Rule 3(1) of CCR, 2004 and whether it permits availing CENVAT credit for duty charged by a 100% EOU under the Central Excise Act. The appellant argued that there is no restriction under Rule 3(1) for availing CENVAT credit of duty charged under the Central Excise Act. The Tribunal, after considering the provisions and judgments cited, concurred with the appellant's interpretation, emphasizing that the duty charged by the EOU is excise duty, not basic custom duty, and hence, CENVAT credit should be allowed as per Rule 3(1).

Discrepancy in Duty Charged by EOU:
The dispute also focused on the discrepancy in the duty charged by the EOU and its subsequent bifurcation into various components. The Tribunal noted that the duty paid by the EOU is a single amount of excise duty, as indicated in the invoices, without any segregation into basic custom duty or other customs duties. The Tribunal emphasized that the entire duty paid should be considered as Central Excise duty under Section 3(1) of the Central Excise Act, rejecting the Revenue's attempt to bifurcate the duty. The Tribunal relied on previous judgments supporting this interpretation and ruled in favor of the appellant.

Extended Period for Demand and Penalty:
Regarding the invocation of the extended period for demand and penalty, the appellant argued that there was no suppression of facts with intent to evade duty payment, making the extended period inapplicable. However, the Commissioner (A) justified the extended period based on the irregularity in availing credit exceeding the additional duty leviable under the Customs Tariff Act. The Tribunal, after thorough analysis and considering the cited judgments, concluded in favor of the appellant, setting aside the impugned order and allowing the appeal with any consequential relief.

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