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2022 (10) TMI 799 - AT - Central ExciseExtended period of SCN - whether the show cause notice has been issued rightly by invoking the extended period of limitation? - if demand of Rs. 3,27,325/- is rightly made for use of E. Cess SHE Cess for payment of duty in December 2016 or not? - HELD THAT - Division Bench of this Tribunal have held in the case of Bharat Heavy Electricals Ltd. Vs. Commissioner, CGST 2019 (4) TMI 1896 - CESTAT NEW DELHI that an assessee is entitled to refund of unutilized cess under the existing law, lying in credit as on 30/06/2017 - Following the ruling of the Division Bench of the Tribunal, Single Member Bench in KIRLOSKAR TOYOTA TEXTILE MACHINERY PVT. LTD. VERSUS COMMISSIONER OF CENTRAL TAX, BENGALURU SOUTH GST COMMISSIONERATE 2021 (8) TMI 818 - CESTAT BANGALORE , considered refund of unutilized credit of EC. SHEC on 30/06/2017, it was held that such refund be granted to the assessee as it neither lapses, nor the same was time barred. Revenue Neutrality - HELD THAT - The appellant not utilized the Cenvat credit of EC SHEC for payment of output tax/duty in December 2016, the same would have become refundable as on 30/06/2017. If the appellant is required to deposit the said amount of Rs. 3,27,325/- in cash, it will become entitled to refund of the duty earlier paid by utilization of credit of EC SHEC, thus the situation is wholly revenue neutral. Appeal allowed.
Issues involved:
1. Validity of the show cause notice invoking the extended period of limitation. 2. Correctness of the demand of Rs. 3,27,325/- for the use of E. Cess & SHE Cess for payment of duty in December 2016. Analysis: Issue 1: Validity of the show cause notice invoking the extended period of limitation The appellant contested the show cause notice on the ground of invocation of the extended period of limitation. The Adjudicating Authority confirmed the demand along with interest and penalty under Section 11 AC read with Rule 15 of CCR, 2004. The penalty of Rs. 5,000/- was also imposed under Rule 15 A of CCR. The appellant argued that there was no malafide intention on their part. The Commissioner (Appeals) rejected the appeal. The appellant further appealed to the Tribunal. The Department argued that the appellant wrongly set off the amount of cess with duty, which was not permissible, justifying the invocation of the extended period of limitation. Issue 2: Correctness of the demand of Rs. 3,27,325/- for the use of E. Cess & SHE Cess for payment of duty in December 2016 The appellant, a manufacturer of AC Conductors, had a credit balance in the Cenvat Register of Education Cess and Secondary & Higher Education Cess of Rs. 3,27,325/ as of 28.02.2015. The appellant utilized this credit for payment of excise duty in December 2016. The Department later pointed out that the appellant wrongly utilized the cenvat credit of Education Cess and SHE Cess, which was not permissible under the amended provisions of Cenvat Credit Rules. The Tribunal referred to previous judgments and held that had the appellant not utilized the credit for payment in December 2016, it would have become refundable as of 30/06/2017. Therefore, the Tribunal allowed the appeal, setting aside the impugned order and stating that the situation was revenue neutral. In conclusion, the Tribunal allowed the appeal, emphasizing that the appellant would have been entitled to a refund if they had not utilized the credit for payment in December 2016. The judgment highlighted the revenue-neutral aspect of the situation and set aside the demand, providing consequential benefits to the appellant.
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