2015 (6) TMI 579 - AT - Central Excise

Tribunal rules in favor of Indian Oil Corp on Cenvat Credit admissibility, show cause notice time-barred

M/s. Indian Oil Corporation Ltd. Versus Commissioner of Central Excise, Mumbai -II

M/s. Indian Oil Corporation Ltd. Versus Commissioner of Central Excise, Mumbai -II - TMI Issues:1. Admissibility of Cenvat Credit on Education Cess.2. Time bar for issuing show cause notice.3. Imposition of penalty under Section 11AC.Analysis:1. The appellant, M/s. Indian Oil Corporation Ltd, availed Cenvat Credit on Education Cess paid on Basic Custom duty, which was found to be inadmissible. The appellant voluntarily paid the wrongly availed credit amount along with interest upon detection by the audit officer before the issuance of a show cause notice. The appellant argued that the credit was taken under a bona fide mistake and without any intention to evade duty. The appellant's counsel cited the case law of Pushpam Pharmaceuticals to support the argument that if there is no commission or omission noticed by the assessee, the extended period for issuing a show cause notice cannot be invoked.2. The appellant contended that the show cause notice issued after two years from the date of payment was time-barred. The appellant's counsel further argued that since there was no intention to evade payment of duty and the mistake was bona fide, the penalty under Section 11AC should not be imposed. The counsel also emphasized that being a public sector entity, there could not have been any intention to evade duty, and the penalty should not be imposed. Various judgments were cited to support these arguments.3. On the other hand, the Ld. Addl. Commissioner (A.R.) reiterated the findings of the impugned order, stating that the payment made by the appellant was only after detection by the audit party, indicating suppression of facts. The Addl. Commissioner argued that since the demand was sustainable for an extended period, the penalty under Section 11AC should not be waived or reduced. After considering the submissions from both sides, the tribunal found that the appellant had made the payment of Cenvat Credit along with interest without contesting before the issuance of the show cause notice. The tribunal held that as per subsection (2B) of Section 11A of the Central Excise Act, 1944, the show cause notice should not have been issued, and hence, the penalty under Section 11AC was set aside. The tribunal clarified that the payment of Cenvat Credit and interest was upheld, and the appeal was partly allowed.This detailed analysis of the judgment highlights the key issues of admissibility of Cenvat Credit, time bar for issuing show cause notice, and imposition of penalty under Section 11AC, providing a comprehensive overview of the legal arguments and the tribunal's decision.