2017 (6) TMI 679 - AT - Central Excise

CENVAT credit - extended period of limitation - Held that - as the Commissioner (A) has observed in para 12.1 to 12.3 that the entire facts were in the knowledge of the department and the audit report also came on 8.1.2007 and the show-cause notice was issued on 3.4.2009 which is beyond the period of limitation and the department has also failed to bring on record any suppression of fact except saying that the same was detected during the audit and had it not been detected during audit, it would have gone unnoticed. This is not sufficient to invoke the extended period of limitation. The assessee has been filing the ER-1 returns regularly, in which the assessee has been disclosing the availment of CENVAT credit and the department did not raise any objection and it is only during audit for the first time the objection was raised and thereafter also the department did not issue the show-cause notice within a period of one year. Appeal dismissed - decided against Revenue.

Summary

Issues:
Appeal against order allowing CENVAT credit, invoking extended period of limitation.

Analysis:
The appeal was filed by the Revenue against the order passed by the Commissioner (A) allowing the appeal of the respondent and setting aside the Order-in-Original. The case involved the erroneous availment of CENVAT credit by the respondent for excisable goods. The department raised objections through an audit report, leading to a show-cause notice proposing recovery of irregular CENVAT credit. The lower authority upheld the notice, but the Commissioner (A) rejected the appeal of the assessee. The CESTAT allowed the appeal by remanding the case to reconsider the limitation issue ignored by the Commissioner (A). The Commissioner (A) passed the impugned order, allowing the appeal on merit and limitation, contrary to the remand direction focusing on limitation alone. The Revenue challenged this order in the present appeal.

The Revenue contended that the extended period was rightly invoked due to the failure of the assessee to disclose irregular CENVAT credit, citing relevant case law. The respondent's counsel defended the order, arguing that the show-cause notice was time-barred as all facts were known to the department before its issuance. The counsel relied on various case laws and decisions to support the defense. The Commissioner (A) also cited precedents and observations to justify the time-barred nature of the show-cause notice.

After hearing both parties and reviewing the records, the Tribunal focused on the limitation aspect as directed in the remand order. It found that the show-cause notice issued beyond the limitation period was not supported by evidence of suppression of facts by the assessee. The Tribunal referenced case laws, including one where the extended period was not invoked due to the absence of suppression of facts. It noted that the department had not raised objections during regular ER-1 returns filing by the assessee, and the objection only arose during the audit. Considering the case laws relied upon by the Commissioner (A), the Tribunal upheld the order, dismissing the Revenue's appeal.

In conclusion, the Tribunal upheld the Commissioner (A)'s decision based on the limitation issue, finding no infirmity in the order passed. The judgment emphasized the importance of evidence of suppression of facts to invoke the extended period of limitation and highlighted the significance of timely issuance of show-cause notices within the statutory limits.