2018 (11) TMI 1450 - AT - Central Excise

Tribunal rules in favor of appellant, penalty deleted, interest for normal period only.

The Tribunal ruled in favor of the appellant, finding that the extended period of limitation was not justified as there was no intention to evade duty. ... Extended period of limitation - customers who supplied plain glass was believed in good faith to be a service and accordingly, service tax was paid under Business Auxiliary Services - no suppression of facts - demand of Interest and penalty. Held that:- Undisputedly, the appellant was discharging service tax liability on the job work undertaken on behalf of the customers who supplied plain glass, by treating the same as service. The Revenue was happily accepting the same without raising objections at any point - It is the settled position of law that the extended period of limitation is available to the Revenue only when an assessee acts with a mala fide intention and there is a positive suppression or mis-statement by the assessee with an intention to evade payment of duty. Mere extracting the requirements of Section of the statute would not ipso facto amounts to suppression or mis-statement or fraud, to invoke the extended period of limitation. The invocation of extended period of limitation cannot be sustained and consequently, there can be no demand as well as interest for the period other than the normal period from the date of issuance of the Show Cause Notice - duty demand restricted to normal period. Interest - Penalty - Held that:- The issue being an interpretational one, the penalty is deleted - interest however is sustained, only for the normal period, if any. Appeal allowed in part. Issues Involved:1. Central Excise Duty liability on job work undertaken by the appellant.2. Invocation of extended period of limitation by the Revenue.3. Interpretation of law regarding suppression or misstatement by the assessee.4. Applicability of penalty and interest in the case.Central Excise Duty Liability on Job Work:The appellant, a manufacturer of Toughened Safety Glass, purchased plain glass from a supplier for manufacturing Toughened Safety Glass. The appellant also undertook job work for customers who supplied plain glass, converting it into Toughened Safety Glass. The appellant raised invoices for labor charges without including Central Excise Duty. The Revenue issued a Show Cause Notice demanding duty, interest, and penalty. The appellant contended that it had been regularly paying service tax on the job work activities under Business Auxiliary Services (BAS) since 2012, and all transactions were duly recorded in their returns. The Tribunal noted that the appellant had discharged its service tax liability on the job work, and the Revenue had accepted it without objections previously.Invocation of Extended Period of Limitation:The Revenue invoked the extended period of limitation to demand Central Excise Duty beyond the normal period. The Tribunal observed that the extended period is applicable only when there is mala fide intention, positive suppression, or misstatement by the assessee to evade duty payment. Mere non-compliance with statutory requirements does not automatically constitute suppression or fraud to justify the extended period. In this case, since the appellant had been transparent in paying service tax and recording transactions, the Tribunal held that the extended period of limitation was not justified.Interpretation of Law on Suppression or Misstatement:The Tribunal emphasized that the extended period of limitation can only be invoked in cases of deliberate evasion or fraud by the assessee. Merely not fulfilling statutory provisions does not amount to suppression or misstatement. The Tribunal concluded that the appellant's actions did not show any intention to evade duty, as all transactions were duly recorded and taxes paid. Therefore, the Tribunal ruled in favor of the appellant on this issue.Applicability of Penalty and Interest:Considering the interpretational nature of the issue, the Tribunal decided to delete the penalty imposed on the appellant. However, the Tribunal upheld the applicability of interest for the normal period, if any. The appeal was partly allowed, restricting the duty demand to the normal period and sustaining interest only for that period.In conclusion, the Tribunal ruled in favor of the appellant, highlighting that the extended period of limitation was not justified, and there was no intention to evade duty. The penalty was deleted, and interest was applicable only for the normal period. The judgment was pronounced on 16.11.2018.