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TMI Blog2021 (6) TMI 1034X X X X Extracts X X X X X X X X Extracts X X X X ..... S and no such certificate has been produced till date. It has also not been established that an application for certification was pending before the BIS authorities and it has been issued subsequently. Therefore, it is not possible to agree with the contention of the learned Chartered Accountant for the appellant that the appellant was eligible for the benefit of exemption notification even though it had no BIS certificate, because the certificate was issued much later in 2014 which means that their products met the standards of BIS all through. Extended period of limitation - HELD THAT:- In this case, the demand was raised after the normal period of limitation. In order to invoke the extended period of limitation either fraud or collu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and motors thereof falling under Chapter Heading 8413 and 8501 of the Central Excise Tariff. It availed the benefit of exemption Notification No. 8/2003-CE dated 1.3.2003 whereby goods manufactured and cleared up to value of ₹ 1.5 crores during the financial year were exempted from payment of duty subject to some conditions. The appellant had not paid any duty for the period 1.4.2010 to 8.8.2011. On 22.7.2011, on crossing threshold limit of ₹ 1.5 crores, it got itself registered with the Central Excise department and also started paying duty on the goods cleared from 9.8.2011 onwards. From 9.8.2011 it also started availing Cenvat credit on the duty paid on inputs as well as capital goods. 3. It is undisputed that the entire p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... they should be given the benefit of exemption notification even for the previous period. 7. As an alternative submission, he argues that during the period of dispute if the appellant had paid duty, it would have been eligible for Cenvat credit of ₹ 17,75,752/- on the inputs and capital goods received against the demand of ₹ 12,53,304/-. He submitted a statement along with copies of relevant invoices. If it was liable to pay excise duty, then it was also entitled to the benefit of Cenvat credit and, therefore, the net excise duty payable is negative. He relies on the following case laws to assert that if exemption is denied, Cenvat Credit is admissible: (a) Meta Pack Vs. CCE 2003 (161) ELT 1052 (Trib.); (b) Shriji ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e entire demand is hit by limitation and, therefore, needs to be set aside. 9. He would argue that it is now well established that the intention to evade payment of duty must be established when alleging suppression of facts. Mere omission to take registration during the relevant period is not sufficient. While Revenue was not able to establish intention, if the facts are considered, it can easily be seen that it would have profited by taking registration and paying duty during the relevant period, as the total amount of Cenvat credit available was much more than the duty now demanded. Therefore, this is not only a case of Revenue neutrality but a case where the credit is higher than the alleged duty liability. This was due to inverse du ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rom the Department nor it produced any documents before the Department, prior to audit of their records. It was aware that small scale exemption notification is admissible only if the goods conform the standards of BIS but never disclosed to the Department that it was claiming the exemption on goods which were not certified by BIS nor did it disclose in the ER returns filed with the Department. The details were suppressed by the appellant and the Department was not aware of the wrongful availment of exemption. In the case of Continental Foundation Jt. Venture Vs. CCE, Chandigarh - 2007 (216) ELT 177 (SC), it was held by the Hon ble Apex Court that suppression means failure to disclose full information with intent to evade payment of duty. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts or violation of Act or Rules with an intent to evade payment of duty must be established. 15. The case of the Department is that the appellant has not disclosed full facts to the Department and before the appellant obtained registration there was no way for the Department to know that the appellant was availing ineligible exemption notification. The fact that the goods were not certified by BIS was in the exclusive knowledge of the appellant and they have not disclosed it to the Revenue. This shows that the appellant had an intention to evade payment of duty. It also establishes that the appellant has suppressed the information from the Department. It is only an audit and verification of records which got these facts to light. 16. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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