2019 (8) TMI 911 - HC - Central Excise

Time Limitation - reopening of proceedings - Section 11A of CEA or under Section 73 of the FA - period involved is April, 2009 to March, 2011 - service tax on freight paid on outward transportation up to the place of removal - HELD THAT - On appeal by the Revenue the High Court of Karnataka set aside the order passed by the larger Bench of the CESTAT to hold that the manufacturer is not entitled to avail such transportation charges. If any assessee was under bona fide belief on account of law laid down by the larger Bench of the CESTAT, the converse is not true, meaning thereby that the assessee was not acting mala fidely nor had supressed any fact or mislead the department while availing the credit for an item which was held to be available as eligible to avail credit by the CESTAT itself. If the law was subsequently declared in favour of the Revenue by the High Court that would not relate back to the period of assessment to brand the assessee's action of availing credit as mala fide - Therefore, the present is not a case where the Revenue would be entitled to invoke the provisions of Section 11A of the Act, 1944 read with Section 73 of the Act, 1994 as there is no foundation for invoking the provision. The substantial question in favour of the assessee and against the Revenue to hold that Section 11A of the Act, 1944 read with Section 73 of the Act, 1994 was not invokable - the subject demand could not have been raised, as being barred by limitation.

Summary

Issues:
1. Legality and validity of the appellate order refusing to accept the appellant's contention on demand credit.
2. Permissibility of reopening proceedings under Section 11A of the Central Excise Act or Section 73 of the Finance Act.
3. Eligibility of the appellant for credit towards service tax on freight paid up to the place of removal.
4. Contestation of demand on the ground of limitation.

Analysis:
1. The appeal questioned the legality and validity of the appellate order passed by the CESTAT regarding the demand credit of ?24,34,593 out of the total demand of ?99,21,728. The appellant contested that this demand, made after the normal limitation period, was not available due to invoking provisions of Section 11A of the Act, 1944 read with Section 73 of the Act, 1994.

2. The substantial question of law admitted in the appeal was whether the Tribunal was justified in holding that the action to reopen proceedings fell within the permissible period under Section 11A of the Central Excise Act or Section 73 of the Finance Act, especially when the latter provision was not initially referred by the Department.

3. The period in question was from April 2009 to March 2011, during which the appellant availed CENVAT credit amounting to ?99,21,728 on service tax on freight paid up to the place of removal. The appellant contested the demand of ?24,34,593, which was not allowed to be credited in their favor, primarily on the grounds of limitation.

4. The appellant's counsel argued that the appellant did not act mala fidely or mislead the authorities while availing the credit, citing a judgment by the CESTAT that supported the appellant's belief in their entitlement to the credit. The respondent's counsel contended that the appellant was aware that the activity was not related to business but still availed the credit, justifying the invocation of Section 11A of the Act, 1944 read with Section 73 of the Act, 1994.

5. Upon reviewing the orders passed by the CESTAT and the High Court, it was concluded that the appellant did not act mala fidely or mislead the department. The judgment rendered by the CESTAT supported the appellant's belief during the relevant period, and any subsequent change in law could not retroactively brand the appellant's actions as mala fide. Thus, the provisions of Section 11A of the Act, 1944 read with Section 73 of the Act, 1994 were deemed inapplicable.

6. Consequently, the appeal was allowed, and the substantial question of law was answered in favor of the assessee, holding that the demand could not have been raised due to being barred by limitation.