2019 (2) TMI 1297 - AT - Central Excise

Tribunal sets aside order, finds no duty evasion. Appeal succeeds on limitation grounds.

The Tribunal ruled in favor of the appellant, setting aside the impugned order. It held that the appellant was not guilty of suppression of facts to evade ... CENVAT Credit - inputs, capital goods as well as input services relating to the electricity that is wheeled out to TNEB - extended period of limitation - Held that:- The Hon’ble Supreme Court in the case of Maruti Suzuki Ltd. [2009 (8) TMI 14 - SUPREME COURT] has held that the credit in respect of input services which is used for electricity that is sold outside is not eligible for credit. Applying this decision, the appellant does not have a case on merits. Extended period of limitation - Held that:- The department has no case that the appellant had not disclosed the credit availed in their ER-1 returns. Further, the appellant has reversed the entire credit on 31.1.2011. All these would go to show that there was no intention to evade payment of duty or tax less any positive act of suppression on the part of the appellant - the department has miserably failed to establish with cogent evidence that the appellant is guilty of suppression of facts with intention to evade payment of duty so as to invoke the extended period of limitation. The show cause notice issued to the appellant is time-barred. Appeal succeeds on limitation. Issues:- Eligibility of CENVAT credit on inputs, input services, and capital goods used for the production of electricity sold to TNEB.- Invocation of extended period of limitation for demanding service tax.- Allegation of suppression of facts by the appellant to evade payment of duty/tax.Analysis:Issue 1: Eligibility of CENVAT credit on electricity productionThe appellants were engaged in manufacturing sugar and molasses, with a cogeneration power plant that got amalgamated with them. The dispute arose when the department challenged the appellants' availing of credit on inputs, capital goods, and input services used for electricity generation sold to TNEB. The department contended that post-electricity's inclusion as excisable goods, credit was not eligible. The Hon'ble Supreme Court's decision in Maruti Suzuki Ltd. case supported this argument, rendering the appellant's case weak on merits.Issue 2: Invocation of extended period of limitationThe appellant argued that the show cause notice was issued invoking the extended period of limitation, which they contested. They claimed that they had availed credit in good faith based on prevailing interpretations and had disclosed it in their returns. The department alleged suppression, citing the delay in reversing the credit post the Supreme Court's judgment. However, the appellant's reversal of credit and timely disclosure in returns indicated no intent to evade payment. The Tribunal held that the department failed to prove suppression, making the notice time-barred and ruling in favor of the appellant on limitation grounds.Issue 3: Allegation of suppression of factsThe department accused the appellant of intentionally taking wrong credit, leading to suppression of facts with an intent to evade duty/tax. However, the Tribunal found no evidence of suppression or intent to evade payment. The appellant's actions of reversing the credit post-judgment and disclosing it in returns demonstrated transparency and compliance. The Tribunal concluded that the department's allegation lacked merit, and the show cause notice was time-barred, thus ruling in favor of the appellant.In conclusion, the Tribunal set aside the impugned order, holding that the appellant was not guilty of suppression of facts to evade payment of duty/tax. The appeal succeeded on limitation grounds, emphasizing the importance of timely disclosure and compliance.