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TMI Blog2015 (5) TMI 168X X X X Extracts X X X X X X X X Extracts X X X X ..... se to the show-cause notice had stated that there is no provision in Central Excise Law to disclose the details of the credit or to submit the duty paying documents, which in our opinion is false and an attempt to deliberately contravene the provisions of the Act, 1944 and the rules made thereunder with an intent to evade the duty. - facts of the present case clearly suggest willful suppression of material facts by the assessee as well as contravention of the provisions of the Act and rules framed thereunder with an intent to evade the demand of duty as would be covered by Clauses IV and V of Section 11 A (1) of the Act, 1944. Therefore, the invocation of the extended period of limitation in the facts of the present case is fully justified. - Decided in favour of Revenue. - Central Excise Appeal No. - 38 of 2015 - - - Dated:- 4-5-2015 - Hon'ble Arun Tandon And Hon'ble Dr. Satish Chandra,JJ. For the Appellant : B. K. S. Raghuvanshi, Sr. S. C. For the Respondent : Ashok Kumar, Praveen Kumar ORDER Heard Sri B.K.S. Raghuvanshi, learned counsel for the petitioner-department and Sri Ashok Kumar, learned counsel for the respondent-assessee. This Central E ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... department in that regard relied upon the judgment of the Apex Court in the case of Vikram Cement vs. Commissioner of Central Excise, Indore reported in 2005 (187) ELT 0145 (SC). Accordingly, a show-cause notice dated 22nd April, 2010 was issued to the assessee by the Commissioner of Central Excise, Ghaziabad for demand and recovery of the Cenvat Credit wrongly availed and utilized along with interest in contravention of provisions of Rule 3 read with Rules 4 and 14 of Rules, 2004 read with Section 11A (1) and Section 11 AB of the Central Excise Act, 1944 (hereinafter referred to as the Act, 1944 ). The assessee was also called upon to show cause as to why penalty be not imposed under Rule 15 of Rules, 2004 read with Section 11AC of Act, 1944. The department also claimed the benefit of extended period by invoking the provisions of Section 11A (1) of Act, 1944 against the assessee on the ground that the assessee had knowingly and willfully indulged in availment of inadmissible Cenvat Credit on the pretext of capital goods against the items in question and had suppressed vital facts from the department. It had utilized the irregular Cenvat credit so availed for payment of cen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or the first time finally denied the credit on these steel items, which are used for supporting structure of foundation of the capital goods. It was further contended that in the facts of the case since none of the items was used for supporting structure of foundation of the capital goods, the credit could not be denied. On 14th January, 2011, a letter was filed by the assessee stating therein that there was no willful act or suppression on their part and therefore, the extended period of limitation cannot be invoked. Opportunity of personal hearing was afforded to the assessee. The Commissioner of Customs, Central Excise and Service Tax vide order dated 19th November, 2011 confirmed the demand of cenvat credit at ₹ 75,61,749/- (BED) + ₹ 1,51,240/- (Education Cess) + ₹ 8286/- (S H Ed. Cess) along with interest under Rule 14 of Rules, 2004 read with Section 11A (1) and Section 11AB of Act, 1944. Penalty to the tune of ₹ 77,21,275/- was imposed upon the assessee under Rule 15 of Rules, 2004 read with Section 11AC of Act, 1944 for contravention of the provisions of law. Not being satisfied with the order so passed, the assessee filed an appeal before ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat credit is claimed correctly and proper records in that regard are maintained. From the records it was established that the assessee took nearly two years time i.e. between November, 2007 to September, 2009 to provide the complete information/ details. In support of the plea that the extended period of limitation could be invoked in the facts of the case, learned counsel for the department placed reliance upon following judgments of the Apex Court: 1. Commissioner of Central Excise, Visakhapatnam vs. Mehta Company; 2011 (4) SCC 435, paragrah nos. 17, 21 and 23, and 2. Usha Rectifier Corporation (I) Ltd. Vs. Commissioner of Central Excise; 2011 (11) SCC 571, paragraph no.12. Learned counsel for the department also referred to the judgment of the Gujarat High Court in the case of Commissioner of Central Excise vs. Neminath Fabrics Pvt. Ltd. reported in 2010 (256) ELT 369, paragraph no.21. Sri Ashok Kumar, learned counsel for the assessee on the contrary submits that the legality of the cenvat credit availed of by the assessee on various iron steel items has been settled by the Larger Bench of the Tribunal in the case of Vandana Global Ltd. (Supra), which has been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e long, there are number of decisions of various forums on the same and in all such cases, it has consistently been held that so long as the steel items are used for the manufacture/fabrication of items which are capital goods, credit cannot be denied. The larger bench of Tribunal in the case of Vandna Global Ltd., reported in 2010 (253) ELT 440, has denied credit on those steel items which are used for supporting structure of foundation of the capital goods. In the instant case since one of the items were used for supporting structure and/or foundation, the credit could not be denied. We find that the reasons so disclosed in the order of the Commissioner have completely been ignored by the Tribunal only on the ground that the law on the legality of the Cenvat credit on the items in questions, has been declared by the Larger Bench in the year 2010 in the case of Vandana Global Ltd. (Supra), therefore, no mala fide can be attributed to the assessee, so as to justify the applicability of the longer period of limitation. In our opinion, the Tribunal is not justified in recording such a finding. From the stand taken by the assessee himself before the Commissioner, as has been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no.12). Similarly in the case of Commissioner of Central Excise, Visakhapatnam vs. Mehta Company (Supra), the Apex Court has explained that where the excisable goods are removed without payment of proper duty of excise, it is explicit that there was an intention on the part of the assessee to evade the payment of duty. (Reference paragraph no.22) The Division Bench of the Gujarat High Court in the case of Commissioner of Central Excise vs. Neminath Fabrics Pvt. Ltd.(Supra) has explained that proviso to Section 11 comes into play only when suppression etc. is established or stands admitted. (Reference paragraph no. 18). So far as the judgment of the Apex Court in the case of Continental Foundation Joint Venture (Supra) relied upon by the learned counsel for the assessee is concerned, the same is clearly distinguishable in the facts of the present case. In the said case, there were various circulars of department operating at different points of time and there was scope for entertaining a doubt about the views expressed by the authorities themselves. It is in this background that the Court had gone to hold that there had been no deliberate suppression. Similarly the jud ..... X X X X Extracts X X X X X X X X Extracts X X X X
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