2017 (10) TMI 331 - HC - Central Excise

CESTAT upholds duty demand, rejects penalties under Section 11AC. No suppression found.

Commissioner, CGST And C. Ex Versus Adani Gas Pvt. Ltd.

The CESTAT upheld the duty demand while ruling against the department on all issues, finding no suppression or willful misstatement by the assessee. The ... Period of limitation - recovery of unpaid dues of excise - mandatory penalty u/s 11AC of the CEA, 1944 read with rule 15(2) of the CCR, 2004 - Held that: - Extended period of limitation for recovery of duty of excise not paid, not levied or short paid or short levied or erroneously refunded would be available to the department only if such event was by reason of fraud, collusion, willful misstatement, suppression of facts or contravention of any of the provisions of the Act or the Rules with intent to evade payment of duty. It is under similar circumstances that the penalty under section 11AC of the Act would attach. Since October, 2005, the assessee had corresponded with the department on the issue of centralized registration along with which necessary information was furnished about the business of the assessee of compression of natural gas and distribution/sale of CNG from various daughter stations. Even the intention of availing CENVAT credit was made clear to the department as early as on 27.02.2007 - with regard to susbsequent SCN also, all information was supplied to the department - there was neither any suppression nor any contravention on the part of the assessee. Full facts were placed before the department and within its knowledge - extended period not invokable. Appeal dismissed - decided against Revenue. Issues:1. Whether the CESTAT was justified in holding the demand as time-barred and in setting aside the mandatory penalty imposed under Rule 15(2) of the Cenvat Credit Rules, 2004 read with Section 11AC of the Central Excise Act, 1944Rs.2. Whether the CESTAT was correct in not imposing a penalty under Rule 15(2) of CENVAT Credit Rules, 2004 read with Section 11AC of Central Excise Act, 1944 based on limitations without considering the availability of the extended period of limitationRs.3. Whether the CESTAT was justified in setting aside the Order in Original passed by the Commissioner and allowing the appeal filed by the companyRs.Analysis:Issue 1:The primary issue in this case revolves around the extended period of limitation for the recovery of unpaid excise dues and the imposition of penalties under Section 11AC of the Central Excise Act, 1944, in conjunction with Rule 15(2) of the Cenvat Credit Rules, 2004.Detailed Analysis:The Tribunal upheld the duty demand while ruling against the department on both issues. It noted that the department was aware of the matter through ongoing correspondences and statements, finding no suppression or willful misstatement by the assessee. The Tribunal highlighted that the appellant had provided necessary information about their business activities and intention to avail CENVAT credit, negating the applicability of the extended period of limitation. The Tribunal also emphasized that the demand was time-barred due to the absence of any suppression of facts, as all relevant information had been disclosed to the department.Issue 2:The second issue concerns the imposition of penalties under Rule 15(2) of the Cenvat Credit Rules, 2004, read with Section 11AC of the Central Excise Act, 1944, based on limitations without considering the availability of an extended period of limitation.Detailed Analysis:The Tribunal found that the imposition of an equivalent penalty on the appellant was unsustainable in law. It referenced a previous judgment of the Gujarat High Court, emphasizing that mere wrongful availment of credit without mens rea and for the purpose of evading duty payment was insufficient to impose a penalty. The Tribunal concluded that the penalty under Section 11AC of the Central Excise Act, 1944, read with Rule 15(2) of the CENVAT Credit Rules, 2004, was not warranted in this case.Issue 3:The final issue pertains to the setting aside of the Order in Original passed by the Commissioner and the allowance of the appeal filed by the company.Detailed Analysis:The Tribunal's decision to set aside the Order in Original and allow the company's appeal was based on the absence of willful misstatement, suppression of facts, fraud, or collusion on the part of the assessee. The Tribunal highlighted that all relevant facts had been disclosed to the department, and there was no evidence to support the allegations of willful misstatement or suppression. Consequently, the Tribunal dismissed the Tax Appeal, affirming that no legal question arose from the case.