2019 (3) TMI 515 - AT - Central Excise

Tribunal upholds duty recovery due to suppression of facts and lack of evidence

The Tribunal upheld the Revenue's demand for duty recovery, citing the appellant's admission of balance duty payment as proof of suppression of facts. The ... Validity of SCN - Suppression of facts - extended period of limitation - Held that:- The SCN is not ipso facto adjudication; just a proposal which culminates in the adjudication order and during the adjudication proceedings, the adjudicating authority looks into all aspects of law, facts and explanations offered by the assessee, the final order and the demand follows thereafter and hence the arguments of the Ld. Consultant that for proposing entire demand, in the SCN itself is bad, cannot be accepted and hence, the same is rejected. One hand, appellant claims that there was no suppression, longer period of limitation should not have been invoked; on the other hand it doesn’t explain difference in closing stock as at the end of the year and the opening stock as of next year. On being pointed out, it admits the duty liability but gives a working as to correct duty liability. Had there not been the show cause notice, the appellant would not have come forward so gratefully, as there would not have arisen any occasion for an assessee to do so, voluntarily. Appeal dismissed - decided against appellant. Issues:1. Reversal of Cenvat credit on goods after opting for exemption under Notification No. 8/2003.2. Allegations of short payment of duty, interest, and penalty under Rule 15(2) of CCR, 2004.3. Invocation of extended period for demand recovery.4. Suppression of facts and liability to pay balance duty.5. Destruction of rejected goods and reversal of excise duty.6. Discrepancy in closing stock values and duty liability calculation.7. Appellant's claim of no suppression and challenge to the invocation of extended period.Issue 1: Reversal of Cenvat credit on goods after opting for exemption under Notification No. 8/2003The appellant availed Cenvat credit but opted for full exemption under Notification No. 8/2003 post-01.04.2005. The Revenue alleged incorrect reversal of credit on inputs when opting for exemption, leading to a Show Cause Notice (SCN) for recovery. The appellant argued that the demand proposed in the SCN exceeded the actual duty liability, contrary to Section 11 2B of the Act. The appellant cited legal precedents to support their contention that only unutilized credit balance should be reversed upon opting for exemption.Issue 2: Allegations of short payment of duty, interest, and penalty under Rule 15(2) of CCR, 2004The Revenue issued a SCN alleging short payment of duty, interest, and penalty under Rule 15(2) of CCR, 2004, post the appellant's opt for exemption. The appellant contested the demand amount in the SCN, stating that the proposed recovery exceeded the actual duty liability. The appellant argued against the sustainability of the impugned order on grounds of demand exceeding the liability and the invocation of extended period for demand recovery.Issue 3: Invocation of extended period for demand recoveryThe appellant challenged the invocation of the extended period for demand recovery, citing compliance with statutory returns and lack of suppression of facts. The appellant argued that the demand was hit by limitation, emphasizing the need for the Revenue to establish the necessary ingredients for invoking the extended period. The Tribunal noted the appellant's reliance on legal precedents supporting their position on the limited reversal of credit upon opting for exemption.Issue 4: Suppression of facts and liability to pay balance dutyThe appellant admitted to a balance duty payment in response to the SCN, indicating a short payment of duty. The Tribunal considered this admission as proof of suppression, leading to the issuance of the SCN for duty recovery. The appellant's failure to provide evidence of destruction of rejected goods or reversal of excise duty further supported the Revenue's demand for duty recovery.Issue 5: Destruction of rejected goods and reversal of excise dutyThe appellant mentioned quality issues resulting in the rejection of manufactured goods by customers, leading to the stockpiling of rejected goods. However, the appellant failed to provide evidence of destruction or reversal of excise duty on the proportionate quantity of raw materials contained in the rejected goods. The Tribunal highlighted the absence of documentary evidence supporting the appellant's claims, undermining their defense against the duty recovery demand.Issue 6: Discrepancy in closing stock values and duty liability calculationThe Tribunal noted a significant mismatch between the closing stock values as reported by the appellant and those found in the P & L account. Despite this discrepancy, the appellant admitted a balance duty payment, indicating non-payment of duty and suppression of facts. The Tribunal emphasized the appellant's obligation to pay the rightful duty amount and the Revenue's entitlement to demand the duty owed.Issue 7: Appellant's claim of no suppression and challenge to the invocation of extended periodThe appellant argued against the invocation of the extended period for demand recovery, claiming no suppression of facts and compliance with statutory returns. However, the Tribunal found the appellant's admission of balance duty payment as evidence of suppression, justifying the demand for duty recovery. The Tribunal dismissed the appeal, citing the appellant's failure to provide sufficient evidence to support their claims and the absence of merit in their grounds for challenge.---