2018 (1) TMI 199 - AT - Central Excise

Time limitation - reversal of irregular availed CENVAT credit - demand of interest and penalty - Held that - though the services on which credit availed were received by the appellant before 1-3-2006 however credit was taken in the month of March, 2006 when the final product become dutiable. In this regard when the credit was shown availed in the month of March when the product is dutiable no one can assume that credit was taken wrongly. The fact that the credit was pertaining to the period prior to 1-3-2006 was not declared in ER-1 return and was not known to the department therefore even though the availment of Cenvat credit was shown in the ER-1 return for the month of March but in absence of information regarding the receipt of input service prior to 1-3-2006 when product was exempted was not disclosed, therefore there is clear suppression of facts and malafide intention on the part of the appellant - Extended period was rightly invoked, hence demand cannot be made being time barred. Demand of Cenvat credit upheld by the Commissioner(Appeals) is maintained. As regard the penalty, adjudicating authority has not given the option of 25% penalty in the order-in-original as required under the proviso to Section 11AC. Penalty is reduced to 25% under Section 11AC subject to condition that the appellant pay this amount within a period of 30 days from the date of receipt of this order. Appeal allowed in part.

Summary

Issues:
1. Availment of inadmissible Cenvat credit on input services during the period when the final product was exempted.
2. Contention regarding the time bar for raising the demand.

Analysis:
1. The case involved the appellant, engaged in the manufacture of Asbestos Cement products, availing Cenvat credit on input services during a period when their final product was exempted. The dispute arose when the appellant utilized the credit for excise duty payment after the product became dutiable. The department alleged inadmissible credit post the exemption period, leading to a show cause notice and subsequent penalties. The appellant contested the demand primarily on the grounds of limitation. The Commissioner (Appeals) upheld the demand and penalties under Section 11AC, except for a penalty under Rule 25, which was set aside. The appellant then filed the present appeal challenging the decision.

2. The appellant argued that the demand should be time-barred as the credit availed was declared in the monthly return in April 2006, and the show cause notice was issued later in 2011. They contended that all relevant facts were available to the department well before the notice was issued, indicating no suppression of facts on their part. However, the tribunal found that although the credit was shown in the return after the product became dutiable, crucial information about the input services received before the exemption period was not disclosed. This lack of disclosure constituted suppression of facts and malafide intention. Consequently, the extended period was rightly invoked, and the demand of Cenvat credit was upheld. Regarding penalties, the tribunal noted a procedural error in the original order and reduced the penalty to 25% under Section 11AC, following a Supreme Court judgment. The appellant was given 30 days to pay the reduced penalty amount.

In conclusion, the tribunal partially allowed the appeal by maintaining the demand for Cenvat credit but reducing the penalty under Section 11AC. The decision highlighted the importance of full disclosure of relevant information to avoid allegations of suppression of facts in tax matters.