2013 (8) TMI 153 - AT - Central Excise

MS tank manufacturer wins duty demand case as extended limitation period fails under Section 11A(1)

CESTAT New Delhi ruled in favor of the assessee manufacturing MS tanks and radiators for transformers. The appellant had paid duty on prices below the ... Extended period of limitation - The appellant having their unit in Industrial Area, U.P., SIDCO, Sikandrabad, Distt. Bulandshahar manufacture MS tanks and radiators for transformers. They are a unit of Accurate Transformers Ltd. (ATL), Ghaziabad which manufactures transformers. The MS tanks and radiators manufactured by the appellant are transferred by them to Ghaziabad Unit of the ATL for its use in the manufacture of transformers - During the period of dispute i.e. during period from 2002-2003 to 2005-2006, in respect of clearances of MS tanks and radiators to their own unit in Ghaziabad for use in the manufacture of transformers, the duty was being paid on the price which was much less than 110%/115% of the cost of production, which was the value on which the duty was required to be paid in terms of Rule 8 of the Central Excise Valuation Rules – Held that:- As per circular No. 818/15/05-CX dated 15/5/05 issued by CBEC under Rule 12 (3) of Central Excise Rules, 2002 prescribing two stage scrutiny of ER-1 and ER-3 returns - Regarding scrutiny of ER-1 returns, it is clear that the returns filed by an assessee are required to be subjected to detailed scrutiny in course of which the concerned officer can call for the documents from the assessee wherever necessary for scrutiny. Therefore in this case, if the concerned Range officer/Assistant/Deputy Commissioner or concerned Additional Commissioner had checked the returns, the short payment would have been immediately detected as, as observed by the Commissioner in para 4.5 of the impugned order, even the registration certificate of the appellant mentioned them as a unit of Accurate Transformers Ltd., and in all the documents of the appellant, the transfer of goods from the appellant to Accurate Transformer Ltd. had been reflected as inter unit transfer. Neither there is any allegation nor evidence to prove that there was some collusion between the appellant and the Jurisdictional Central Excise officers - The assessee cannot be penalized by invoking extended period under proviso to Section 11 A (1) for demand of duty and penal provisions of Section 11AC for indolence on the part of the jurisdictional Central Excise officers – Decided in favor of Assessee. Revenue Neutral Exercise - Held that:- As per the decision in the case of Jay Yuhshin Ltd. vs. CCE, New Delhi [2000 (7) TMI 105 - CEGAT, COURT NO. I, NEW DELHI], when Revenue neutral situation comes about in relation to the credit available to an assessee himself in respect of the duty paid by him and not by the way of availability of the credit to the buyer of the assessee’s manufactured goods, the assessee cannot be accused of having contravened the rules with intent to evade the payment of duty and extended period under proviso to Section 11A (1) would not be invokable - Entire duty paid by the appellant in respect of clearances of MS tanks and radiators to their transformer unit, was available to the transformer unit as Cenvat credit - Unit of the appellant in Bulandshahar Distt. and the transformer unit of M/s Accurate Transformers Ltd. at Ghaziabad are owned by the same person – Therefore, extended limitation period is not invokable and, as such, the entire duty demand is time barred – Decided in favor of Assessee. 1. ISSUES PRESENTED and CONSIDERED(a) Whether the clearances of MS tanks and radiators by the appellant unit to its parent unit for use in manufacture of transformers constitute clearances to a related person for captive consumption, thereby attracting valuation under Rule 8 read with Rule 9 of the Central Excise Valuation Rules, 2000, requiring duty payment on 110%/115% of the cost of productionRs.(b) Whether the extended period of limitation under proviso to Section 11A(1) of the Central Excise Act, 1944 is invokable for recovery of duty demand for the period 2002-2003 to 2005-2006, on the ground of suppression of facts or intent to evade dutyRs.(c) Whether penalty under Section 11AC of the Central Excise Act is sustainable in the absence of fraud, wilful misstatement or suppression of facts with intent to evade dutyRs.(d) Whether the duty demand is barred by limitation and the invocation of extended period is improper due to absence of suppression or fraudulent conductRs.2. ISSUE-WISE DETAILED ANALYSISIssue (a): Valuation of clearances to related unit for captive consumptionThe appellant manufactured MS tanks and radiators at their unit in Bulandshahar and transferred these goods to their parent company's unit at Ghaziabad for use in transformer manufacture. The question was whether such stock transfers to a related unit for captive consumption should be valued under Rule 8 read with Rule 9 of the Central Excise Valuation Rules, 2000, which prescribes valuation on 110%/115% of cost of production, or whether the price declared by the appellant was acceptable.The Court noted that the appellant's invoices clearly mentioned that the goods were transferred to their parent company's unit and were for captive consumption. It was undisputed that no sales to independent buyers took place during the period in question. The Court held that such clearances to a related person for captive use fall within the ambit of Rule 9 read with Rule 8, mandating valuation on 110%/115% of cost of production. The appellant's payment of duty on a lower value was therefore incorrect.The Court relied on the plain language of the Rules and the nature of the transaction, emphasizing that stock transfers to related units for captive consumption are not ordinary sales and must be valued accordingly. The appellant's contention that stock transfers cannot be treated as captive consumption was rejected.Issue (b): Invokability of extended limitation period under proviso to Section 11A(1)The show cause notice was issued beyond the normal limitation period of one year, invoking the extended period under proviso to Section 11A(1), which requires proof of suppression, fraud, wilful misstatement or contravention with intent to evade duty.The Court examined the facts and found that the appellant had consistently declared the clearances to the parent unit as stock transfers for captive consumption in ER-1 returns and invoices. The ownership of the appellant unit by the parent company was clearly indicated in all documents. There was no concealment or failure to disclose material facts to the department.The Court also observed that the departmental officers had not subjected the ER-1 returns to the detailed scrutiny mandated by CBEC circulars, which require verification of valuation and duty payment within three months. The short payment was detected only during an audit visit, not by routine scrutiny. The Court held that the appellant cannot be penalized for the department's failure to act promptly.Relying on Supreme Court precedents, the Court reiterated that mere omission or non-payment of duty does not constitute suppression unless accompanied by deliberate intent to evade duty. The Court found no evidence of such intent or fraud by the appellant.Issue (c): Applicability of penalty under Section 11ACPenalty under Section 11AC is attracted only when there is fraud, wilful misstatement or suppression of facts with intent to evade duty. Since the Court found no such suppression or fraudulent conduct, the imposition of penalty was held to be unsustainable.Issue (d): Time bar and revenue neutral situationThe Court further noted that the duty paid by the appellant on the clearances was available as Cenvat credit to the parent unit, which used the goods for manufacture. Since both units are owned by the same person, the situation was revenue neutral.The Court relied on the Larger Bench decision of the Tribunal in Jay Yuhshin Ltd. and subsequent Division Bench decisions, which held that in a revenue neutral situation where credit is available to the same assessee or related unit, extended limitation under proviso to Section 11A(1) is not invokable as there is no intent to evade duty.Accordingly, the Court held that the entire duty demand was barred by limitation and the extended period was wrongly invoked.3. SIGNIFICANT HOLDINGS'The clearances made by the appellant to their parent unit... have to be treated as the clearances made to a related person for its captive use and, hence, in accordance with the provisions of Rule 9 read with Rule 8 of the Central Excise Valuation Rules, 2000, the duty was payable on 110%/115% of the cost of production.''The appellant cannot be penalized by invoking extended period under proviso to Section 11A (1) for demand of duty and penal provisions of Section 11AC for indolence on the part of the jurisdictional Central Excise officers.''Mere omission to give certain information is not suppression of fact unless it is deliberate with intention to evade the payment of duty.''When Revenue neutral situation comes about in relation to the credit available to an assessee himself... the assessee cannot be accused of having contravened the rules with intent to evade the payment of duty and extended period under proviso to Section 11A (1) would not be invokable.''Since, there is no evidence of the appellant having committed any fraud or wilful misstatement, suppression of facts with intent to evade the payment of duty, the penal provisions of Section 11AC also would not be applicable.'The Court set aside the impugned order confirming duty demand and penalty, holding the demand time barred and penalty unsustainable.