2019 (2) TMI 254 - AT - Central Excise

Extended period of limitation - SSI Exemption - crossing of threshold limit - SSI limit exceeded during the period 2011-12, but registration taken only on 18.01.2012 - no suppression of facts - no intent to evade - Held that - The audit party did not find any short-payment of duty. Interestingly, the show-cause notice is issued after more than two years invoking the extended period alleging suppression of facts. When the appellants themselves had informed the department regarding the omission to pay duty, the allegation of suppression is without any factual basis - So also, when the audit party has not raised any objection after going through the accounts in 2013, it can be safely concluded that the credit was sufficient to adjust to the duty liability. Merely because the appellants could not produce certain invoices, after more than two years cannot be a found to saddle them guilt of suppression of facts. The department has failed to establish any suppression of facts on the part of the appellants with an intention to evade payment of duty. The demand raised invoking the extended period, therefore, cannot sustain - appeal allowed on the ground of limitation.

Issues:
1. Eligibility for SSI exemption for financial year 2011-12.
2. Demand of duty, interest, and penalties due to exceeding SSI exemption limit.
3. Appeal against penalties imposed under section 11AC of Central Excise Act, 1944.
4. Availability of credit on invoices for adjustment towards duty liability.
5. Grounds of limitation invoked by the appellants.
6. Allegations of suppression of facts by the department.
7. Assessment of audit party findings and objections.
8. Validity of demand raised after an extended period.

Analysis:

1. The appellants were engaged in Bitumen Emulsion manufacturing and availed SSI exemption until 2010-11. However, they exceeded the exemption limit in 2011-12, leading to a demand notice for unpaid Central Excise duty, interest, and penalties. The original authority confirmed a reduced demand but imposed penalties under section 11AC of the Central Excise Act, 1944. The Commissioner (Appeals) upheld the penalties, prompting the appellants to appeal before the Tribunal.

2. The appellants argued that they inadvertently exceeded the exemption limit due to oversight, promptly registered for duty payment, and provided detailed information on invoices for credit adjustment towards duty liability. Despite losing some invoices during a natural disaster, they contended that sufficient credit was available for adjustment. The Commissioner (Appeals) verified and allowed credit on some invoices but disallowed on others, leading to the current appeal.

3. The appellants strongly contended that the demand raised after an extended period alleging suppression of facts was unjustified. They had voluntarily disclosed their liability in a letter to the department in 2013, supported by a Chartered Accountant's certificate. The audit party did not object to the credit adjustment during their verification in 2013, except for a minor issue rectified by the appellants. The appellants argued that the department's claim of suppression was baseless, given their proactive disclosure and compliance post-discovery.

4. The Tribunal examined the facts and found that the department failed to prove any suppression of facts by the appellants to evade duty payment. The demand raised invoking the extended period was deemed unsustainable and set aside. The Tribunal ruled in favor of the appellants on the ground of limitation, allowing the appeal with any consequential reliefs.

Conclusion:
The Tribunal overturned the penalties imposed on the appellants, citing lack of evidence of intentional suppression of facts. The demand raised after an extended period without substantial proof of evasion was deemed invalid, leading to the appeal's success based on the limitation grounds.

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