TaxTMI 
TaxTMI 
2014 (1) TMI 1474
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....eed following Apex Court's decision in the case of Commissioner of Central Excise Vs. Sunwin Technosolution P. Ltd. reported in 2011 (21) Service Tax Reports 97 (SC), the appeal filed by the Respondent only succeeds only on the point of time bar and not on merit? (ii) Whether on the facts and in the circumstances of the case the CESTAT was justified in holding that Respondent ought not have been denied the benefit of credit of additional Customs Duty paid through DEPB Scheme on the ground that the Respondent was in dark for the confusing or the divergent views expressed by the Tribunal in the Plethora of cases ?" The assessee is registered with the Central Excise Department for manufacture of automobile parts (articles of plastic) falling....
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....incorporated in either of the aforesaid returns. The party had also not submitted the aforementioned Bills of entries to the department so that the department could have knowledge to material information contained therein. Thus material information relevant for scrutiny of above returns were suppressed and concealed from the department. The party had deliberately concealed the facts with the department with intent to evade the central excise duty by debiting the duty through DEPB scheme. Accordingly, the party suppressed the fact by not following the procedure as prescribed and availed/utilized the Cenvat Credit wrongly. Hence extended period under Section 11(A) of Central Excise Act, 1944 is invokable in the instant case for recovery of in....
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....ked in this case." The view of the Commissioner (Appeals) has been reversed by the Tribunal, following its decision in L.N.M Auto Industries Pvt. Ltd. Vs. Commissioner of Central Excise, Delhi-IV reported in 2012 (281) E.L.T. 578. The Tribunal has held that no mala fides could be attributed to the assessee since it was in the decision of the Punjab and Haryana High Court in Commissioner of Central Excise, Ludhiyana Vs. Neel Kanth Rubber Mills reported in 2010 (254) E.L.T 203 that the controversy was eventually resolved. Hence, the Tribunal was of the view that although on merits the assessee is not entitled to succeed, the appeal would have to be allowed only on the bar of limitation since the extended period of limitation was not applica....
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....ed in DEPB. This notification was followed by a circular dated 21 October 2004 which came into effect from 1 September 2004 which clarifies and explains Notification dated 17 September 2004. Para 6 of this circular provides that the aforesaid facility would be available only in respect of the licenses issued under the new Foreign Trade Policy and the licenses issued under the previous policies would be governed by the provisions of the earlier policies. The Tribunal, in the present case, has held that the notification dated 17 September 2004 would have only prospective effect. This view is in accord with the judgment of the Supreme Court in Commissioner of Central Excise Vs. Sunwin Technosolutions P. Ltd. reported in 2011 (21) S.T.R. 97 (S....
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....eing overruled. There is absolutely no reasoning on that aspect. The Tribunal has relied upon its own decision in L.N.M. Auto Industries Pvt. Ltd. (supra). The decision in L.N.M. Auto Industries Pvt. Ltd. (supra) refers to the confusion in law which prevailed until the judgment was delivered by the Punjab and Haryana High Court in Neel Kanth Rubber Mills (supra). In our view, the essential aspect which has to be considered by the Tribunal is as to whether, within the meaning of the proviso to Section 11-A(1), the short levy was by reason of fraud, collusion, willful misstatement or suppression of facts or contravention of the provisions of the Act or the rules with intent to evade payment of duty. The Tribunal has not applied its mind to th....