2024 (2) TMI 1015 - AT - Central Excise

Levy of Automobile Cess - manufacture of Electrically Operated Vehicles named Yo Bikes by assembling various Parts, components and Assemblies - exempt under N/N. 25/2008-CE - time limitation - suppression of facts or not - HELD THAT - The appellant is assembling various parts and components in order to produce Yo-Bikes falling under the chapter heading 87 which qualifies for exemption vide Notification No. 25/2008-CE. Further it is observed that the Appellant has paid automobile cess upon being pointed out by auditors for the period February, 2010 to February, 2011 under protest only because the Appellant was under bona fide belief that their product does not qualify under the category of automobiles and thus they were not liable to pay cess for which they received no clarity from the department with respect to their liability. It is pertinent to note here that the department has taken no effort to establish any tests/ingredients as to why the product of the appellant will be classifiable as automobile for the levy of automobile cess and has simply taken the support of Notification 67/88 dated 09/01/1989 to levy automobile cess on the Appellant. The entire demand for automobile cess has been raised from the Audit Objection and records maintained by the Appellant which goes on to show that the department never raised any objection regarding non deposit of automobile cess even when the cess was paid by the Appellant under protest. Therefore it cannot be denied that the Department had enough time to investigate for the purpose of levy of cess. Time limitation - HELD THAT - The entire demand in this case is time barred as for the period 2008 09 to 2011 - 12 show cause was issued on 03.04.2013 which is not only beyond the period of normal limitation but also that the Department has incorrectly invoked extended period of limitation without sufficiently establishing ingredients to give effect to the same. The demand is barred by limitation. The issue on merit is left open. Thus the impugned order is set aside - Appeal allowed.

Summary

Issues involved: Levy of Automobile Cess, Suppression of facts, Limitation period

Summary:
The case involved a dispute regarding the levy of Automobile Cess on Electrically Operated Vehicles by the Appellant, M/s Electrotherm India Ltd. The Appellant contended that their product, Yo-Bikes, was exempted from Central Excise Duty under Notification No. 25/2008-CE dated 29/04/2008, and thus, they were not liable to pay the cess. The Department classified the product as an "automobile" for the purpose of cess levy, which the Appellant disputed.

Regarding the issue of suppression of facts, the Appellant argued that they had paid the cess under protest for a specific period, believing in good faith that their product did not fall under the category of automobiles. They claimed that the Department failed to provide clarity on their liability and wrongly invoked the extended period of limitation based on alleged suppression of facts.

After considering the submissions, the Tribunal found that the demand for Automobile Cess was time-barred. The Tribunal noted that the Department did not establish why the product should be classified as an "automobile" for cess levy and raised the demand based on audit objections, despite the Appellant paying the cess under protest. The Tribunal held that the Department had sufficient time to investigate and that the lower authorities incorrectly upheld suppression of facts to invoke the extended limitation period.

Consequently, the Tribunal set aside the impugned order, ruling that the demand was barred by limitation, and left the issue on merit open. The appeal was allowed, and the decision was pronounced in open court on 20.02.2024.