2018 (12) TMI 1360 - AT - Central Excise

Credit of cess paid on the counter veiling duty - Extended period of limitation - Held that - Admittedly the credit was being availed by the assessee by reflecting the same in their statutory records. The said fact was also declared by the appellant in their returns filed with the Revenue. Mere non-payment of tax or wrong availment of credit by itself, cannot lead to be a mala fide intent on the part of the assessee - It is well settled law that for invocation of longer period, Revenue has to produce evidence on record that any suppression or mis-statement by assessee was with a mala fide intention. In the present case, there was not even any suppression on the part of the assessee inasmuch as he was disclosing the fact of availment of credit to the Revenue - the demand is barred by limitation. The demand of duty along with imposition of penalty is set aside except the part which may fall within the limitation period - appeal allowed in part.

Summary

Issues:
1. Availment of Cenvat Credit on cess paid on customs duty and counter veiling duty post their merger.
2. Validity of demand raised for credit availed during the period from March 2012 to October 2014.
3. Applicability of the extended period of limitation due to wrongful availment of credit.

Issue 1: The appellant, engaged in manufacturing Thermocol Products, claimed Cenvat Credit of duty paid on various inputs and also on the cess paid on customs duty. Following the merger of the cess leviable on customs duty and counter veiling duty in March 2012, the appellant was no longer entitled to the credit of such cess paid by them. However, they continued to avail the credit from March 2012 to October 2014, resulting in a demand for denial of the credit amounting to ?7,28,669.00.

Issue 2: The Revenue initiated proceedings against the appellant for denial of the wrongly availed credit through a show cause notice dated 15.12.2015. The Original Adjudicating Authority confirmed the demand, interest, and penalty, rejecting the appellant's contention of time bar due to their continued belief in the availability of the cess credit.

Issue 3: The appellant argued that their continued availment of the cess credit was based on a bona fide belief in its availability, supported by the reflection of such credit in their records and returns filed with the Revenue. The Tribunal found that there was no suppression or misstatement by the appellant, as they disclosed the credit availed. Citing precedent, the Tribunal held that the demand was barred by limitation as there was no evidence of mala fide intent on the part of the assessee.

The Tribunal ruled in favor of the appellant, setting aside the demand and penalty, except for any part falling within the limitation period. The absence of mala fide intent led to the rejection of the extended period of limitation and the imposition of a penalty. The appellant was required to pay any amount falling within the limitation period, as quantified by the Original Adjudicating Authority.