2020 (1) TMI 761 - AT - Central Excise

CENVAT Credit - excess found goods - credit denied and penalty imposed on the ground that the goods were found physically excess as compared with statutory record in the stocks - time limitation - HELD THAT - The adjudicating authority has not denied the fact that on the same facts a Show Cause Notices as already been issued to the appellants on 01.07.1994 to deny Cenvat credit. Further, on the same invoices the impugned show cause notice has been issued to the appellant on 28.02.1996. The impugned show cause notice is barred by limitation as the fact of availment of Cenvat credit was not in the knowledge of the Revenue while issuing Show Cause Notice dated 01.07.1994. The impugned show cause notice is not sustainable, consequently, the demand raised against the appellant to deny Cenvat credit is not sustainable - Appeal allowed - decided in favor of appellant.

Issues:
- Denial of Cenvat credit
- Recovery of excess goods
- Imposition of penalty
- Compliance with earlier Tribunal order
- Limitation period for Show Cause Notice

Denial of Cenvat Credit:
The appellants appealed against an order denying Cenvat credit, demanding recovery, and imposing penalties due to excess goods found during an investigation. In a previous round of litigation, the Tribunal remanded the case back to the adjudicating authority for detailed examination of documents produced by the appellant. However, in the subsequent order, the Commissioner denied Cenvat credit and imposed penalties, leading to the current appeal. The appellant argued that the adjudicating authority did not follow the Tribunal's directions and raised issues not relevant to the remand proceedings. The appellant contended that the Show Cause Notice for the demand was time-barred and not properly considered. The Authorized Representative supported the impugned order, suggesting a remand for fresh consideration. The Member found that the impugned Show Cause Notice was indeed barred by limitation as the fact of availment of Cenvat credit was not known to the Revenue when the initial notice was issued. Consequently, the impugned proceedings were held to be barred by limitation, and the order was set aside, allowing the appeals with any consequential relief.

Recovery of Excess Goods:
During the investigation, it was found that goods were physically in excess compared to statutory records in the stocks of M/s Ashirwad Ispat Udyog. This led to proceedings being initiated against the appellant for the excess goods found, resulting in the denial of Cenvat credit and the imposition of penalties. The issue of excess goods was a crucial factor in the Tribunal's decision to remand the case for further examination. However, the subsequent order by the Commissioner denied Cenvat credit and imposed penalties, prompting the current appeal and subsequent findings on the limitation period for the Show Cause Notice.

Imposition of Penalty:
In addition to the denial of Cenvat credit, penalties were imposed on the appellants in connection with the excess goods found during the investigation. The penalties were part of the impugned order issued by the Commissioner, leading to the current appeal before the Member. The appellant's counsel argued that the adjudicating authority had not followed the Tribunal's directions and had raised irrelevant issues not pertinent to the remand proceedings. Ultimately, the Member's decision on the limitation period for the Show Cause Notice impacted the sustainability of the penalties imposed, resulting in the setting aside of the impugned order and allowing the appeals with any consequential relief.

Compliance with Earlier Tribunal Order:
The Tribunal had previously remanded the case back to the adjudicating authority for detailed examination of documents produced by the appellant. However, in the subsequent order by the Commissioner, Cenvat credit was denied, penalties were imposed, and the recovery of excess goods was demanded. The appellant contended that the adjudicating authority did not adhere to the Tribunal's directions and raised issues not relevant to the remand proceedings. The failure to comply with the earlier Tribunal order was a crucial aspect raised by the appellant in challenging the impugned order, leading to the current appeal and subsequent findings on the limitation period for the Show Cause Notice.

Limitation Period for Show Cause Notice:
The appellant argued that the impugned Show Cause Notice for the demand was barred by limitation and not properly considered by the adjudicating authority. The appellant contended that a previous Show Cause Notice had been issued on the same invoices, making the subsequent notice time-barred. The adjudicating authority's findings acknowledged the earlier notice but justified the subsequent notice based on new, additional, and incriminating evidence. However, the Member found that the impugned Show Cause Notice was indeed barred by limitation as the fact of availment of Cenvat credit was not known to the Revenue when the initial notice was issued. This finding led to the impugned proceedings being deemed barred by limitation, resulting in the setting aside of the order and allowing the appeals with any consequential relief.

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