2020 (4) TMI 73 - AT - Central Excise

Extended period of limitation - imposition of penalty - Non inclusion of value of Hummali/ Tulaicharges in the assessable value - Non inclusion of amount charged on the basis of debit notes in the assessable value - Cenvat credit of Customs Education cess and Customs Secondary Higher Education Cess - Cenvat Credit on outward freight - Cenvat Credit on invoice after six months of the issue of invoice. Cenvat credit - freight from the factory to the buyers premises for F.O.R. supply - HELD THAT - The issue has been settled only by the Apex Court judgement in COMMISSIONER OF CENTRAL EXCISE SERVICE TAX VERSUS ULTRA TECH CEMENT LTD. 2018 (2) TMI 117 - SUPREME COURT wherein it has been held that the cenvat credit on outward freight from the place of removal was not admissible - though the demand alongwith interest is sustainable on this count however we find that the charges of wilful suppression are not sustainable against the appellant. Accordingly the penalty imposed on this issue is legally not sustainable as department already have knowledge of such facts. Availment of credit of 3283/- beyond six months - HELD THAT - N/N. 6/2015CE NT dated 01.03.2015 was issued which extended the time limit to avail the cenvat credit on invoices from six months to one year. As per Order-in-Original Cenvat credit on invoice dated 17.07.2014 has been taken on 01.03.2015 which was rightly availed in view of the amended notification. Thus the demand alongwith interest and penalty is dropped on this issue. Non-inclusion of certain amounts collected for Hummali/ Tulai - non-inclusion of value of recoveries made against debit notes on rate difference - incorrect availment of inadmissible Cenvat credit against Customs education cess and higher secondary cess - HELD THAT - The appellant was responsible for discharging excise duty on correct assessable value and availing only admissible cenvat credit. The show cause notice which was issued on altogether different grounds than involved in the present proceedings was no bar to issue another show cause notice under extended period of limitation - The appellant could not show that he had any bonafide belief while not paying the proper excise duty on extra charges collected from the buyers or taking an inadmissible credit - Demand with interest and penalty upheld. Appeal allowed in part.

Summary

Issues involved:
1. Non inclusion of value of Hummali/Tulai charges in the assessable value
2. Non inclusion of amount charged on the basis of debit notes in the assessable value
3. Claiming of Cenvat credit of Customs Education cess and Customs Secondary & Higher Education Cess
4. Wrong availment of Cenvat Credit on outward freight
5. Wrong availment of Cenvat Credit on invoice after six months of the issue of invoice

Analysis:

1. Non inclusion of value of Hummali/Tulai charges in the assessable value:
The demand was confirmed due to extra charges collected by the appellant on Hammali/Tulai, not included in the assessable value for Central Excise duty. The appellant contested the demand on the grounds of limitation, stating no wilful suppression. However, the tribunal upheld the demand, stating the charges should be included in the transaction value. The penalty was reduced to 50%.

2. Non inclusion of amount charged on the basis of debit notes in the assessable value:
The demand was confirmed for extra charges collected through debit notes. The appellant contested based on limitation, but the tribunal upheld the demand, reducing the penalty to 50%.

3. Claiming of Cenvat credit of Customs Education cess and Customs Secondary & Higher Education Cess:
The demand was confirmed as the credits were not admissible under Cenvat Credit Rules. The tribunal upheld the demand, reducing the penalty to 50%.

4. Wrong availment of Cenvat Credit on outward freight:
The demand was confirmed for availing Cenvat credit on outward freight beyond the admissible limit. The tribunal upheld the demand, stating the penalty was not sustainable due to prior knowledge by the department.

5. Wrong availment of Cenvat Credit on invoice after six months of the issue of invoice:
The demand was confirmed for availing credit after six months, but the tribunal dropped the demand and penalty citing an amended notification extending the time limit.

In conclusion, the tribunal upheld demands related to issues 1, 2, and 3, reducing penalties to 50%. For issue 4, the demand was upheld, but the penalty was deemed not sustainable. Issue 5 was dropped due to the amended notification. The impugned orders were modified accordingly.