2019 (7) TMI 761 - AT - Central Excise

Tribunal sets aside demand & penalty, finds no misrepresentation.

M/s. Balaji Engineers & Galvanizers Versus Commissioner of Customs, Central Excise and Service Tax

The Tribunal held that the extended period of limitation for issuing a show cause notice was not justified in the case. It found no evidence of ... Extended period of limitation - SCN issued by way of Change of opinion - Suppression of facts or not - excise duty on galvanization charges - HELD THAT:- There is no case of any mis-representation or deliberate suppression or contravention of the provisions on the part of the appellant. Further, we find that the appellant has cleared their goods to Registered manufacturer with the Department. Whatever duty the appellant would have paid additional would have been available as cenvat credit to those manufacturers. Thus, situation is also revenue neutral in the facts and circumstances. The extended period of limitation is not available to the Revenue - appeal allowed - decided in favor of appellant. Issues:1. Whether the show cause notice invoking the extended period of limitation was rightly issued.Analysis:The appeal revolved around the correctness of the show cause notice issued for the period December 2007 to March 2012, demanding duty along with penalty. The appellant, engaged in galvanization work, received Black Metal Components under job work challans as per prescribed procedure and also from customers without following the prescribed job work procedure. The Revenue alleged that the appellant did not include the cost of metal components received for galvanization in the transaction value, leading to the demand notice invoking the extended period of limitation.The show cause notice was contested, and the demand was confirmed with an equal penalty. The appellant, dissatisfied with the decision, approached the Commissioner (Appeals), who upheld the decision. Subsequently, the appellant appealed before the Tribunal, arguing that there was no suppression or misrepresentation on their part. They maintained proper records, paid excise duty on galvanization charges, and the show cause notice was issued merely as a change of opinion, invoking the extended period of limitation.In support of their argument, the appellant cited a Tribunal ruling in a similar case where it was held that there was no suppression or misrepresentation, and the extended period of limitation was not applicable as the situation was revenue neutral. The Revenue, on the other hand, contended that the appellant failed to discharge duty properly and determine the transaction value correctly, emphasizing the assessee's responsibility to follow valuation procedures.After considering the arguments, the Tribunal found no evidence of misrepresentation, deliberate suppression, or contravention by the appellant. It noted that the appellant had cleared goods to registered manufacturers, and any additional duty paid would have been available as cenvat credit to those manufacturers, resulting in a revenue-neutral situation. Consequently, the Tribunal held that the extended period of limitation was not justified, setting aside the impugned order and allowing the appeal with consequential benefit.