2013 (11) TMI 27 - AT - Central Excise

Valuation - Misdeclaration of Facts - Differential Duty - Extended period of limitation - Revenue was of the view that the value of Design and Engineering Work was not included in the assessable value of Mounted Storage Vessels manufactured and cleared by the appellant Held that - There was no need for the appellant to suppress or mis-declare of any facts as the appellant could have taken CENVAT credit which was more than the duty payable as worked out by the department - it cannot be said that the appellant has committed suppression or mis-declaration, fraud, collusion, etc. to evade payment of duty - by not availing the CENVAT credit, the revenue realisation is nearly more than ₹ 10 lakhs extra - the entire demand is time-barred the order set aside Decided in favour of Assessee.

Summary

Issues:
1. Differential duty demand on the ground of non-inclusion of "Design and Engineering Work" in assessable value of "Mounted Storage Vessels".
2. Consideration of limitation period for the demand.
3. Eligibility for CENVAT credit on service tax paid by another unit.
4. Assessment of suppression or mis-declaration by the appellant.

Detailed Analysis:
1. The judgment addresses the differential duty demand of Rs. 31,75,645 from the appellant due to the alleged non-inclusion of the value of "Design and Engineering Work" in the assessable value of "Mounted Storage Vessels" manufactured and cleared by the appellant. The issue was taken up for final disposal considering the limitation aspect.

2. The appellant argued that the demand was beyond the normal limitation period of one year as the show-cause notice was issued on 29.2.2012 for the period from 2007-08 to 2009-10. The Tribunal agreed that the entire demand was time-barred, leading to the setting aside of the impugned order and allowing the appeal with any consequential relief.

3. The appellant highlighted that they had undertaken "design and engineering work" and had paid service tax exceeding Rs. 43 lakhs. They contended that if the value of this work was to be included in the assessable value, they would be eligible for CENVAT credit on the service tax paid by their Pune unit. Notably, the appellant had not availed the CENVAT credit on the service tax paid by the Pune unit, resulting in an excess payment of over Rs. 10 lakhs, which could have been used to discharge excise duty. This situation was deemed revenue neutral.

4. The Tribunal acknowledged the arguments presented by the appellant's counsel, emphasizing that there was no intent to suppress or mis-declare facts, given the availability of CENVAT credit that exceeded the duty payable as calculated by the department. The failure to utilize the CENVAT credit led to an additional revenue realization of more than Rs. 10 lakhs, indicating no fraudulent intent or evasion of duty. Consequently, the demand was considered time-barred, and the appeal was allowed in favor of the appellant.