2014 (12) TMI 201

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....The Show Cause Notice in this case was issued on 12.07.2012 2. The facts, briefly stated, are as under: The appellants entered into a contract with M/s. Enmas GB Power Systems, for supply of 1 super heated steam, coal fired boiler and one 24MW STG power with auxiliaries. They took Cenvat credit of the parts/component required for the said captive power plant. The adjudicating authority held that the impugned parts and component were procured by the contractors and power plant attached to the ground is not goods and therefore the appellants were not eligible to take the Cenvat credit in respect of thereof and consequently confirmed the impugned demand holding them guilty of suppression of facts. 3. The appellants have contended that....

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....ds of the Noticee. It thus appears that the Noticee have deliberately suppressed the facts from the department with the intention to avail the inadmissible Cenvat credit and thereby evade payment of central excise duty on their final products. Therefore, it appears that the Cenvat credit amounting to Rs. 2,16,06,285/- wrongly availed by the Noticee is recoverable from them under rule 14 of the Cenvat credit Rules, 2004 read with section 11A of the Central Excise Act, 1944 by invoking the extended period of limitation under Section 11A(4). In the impugned adjudication order, the mandatory penalty (for suppression of facts) has been held to be sustainable on the basis of the following para:        &nbs....

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....se. The Party had not disclosed the above taking of Cenvat credit to the department as there is no requirement under law to intimate the same and nor any provisions requiring such disclosure is pointed out in the show cause notice. Similarly, there is no requirement for enclosing the documents on the basis of which Cenvat credit has been availed along with the ER-1 returns as this requirement had already been dispensed with since long. The figures of availment of Cenvat credit on various capital goods were duly mentioned in ER-1 returns filed by the party during the relevant period and so in such circumstances, suppression of material facts is wrongly alleged in the present case for invoking extended period of limitation. Moreover, the part....

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....its that the appellants had been regularly filing the ER-1 returns showing all the details. The adjudicating authority has held that the noticee was required to declare certain facts instead of taking a plea that it was not required do so. The adjudicating authority does not quote any provision of law under which they were required to declare the 'facts'; the case law cited by the adjudicating authority is not even applicable as in this case as ER-1 returns were duly submitted. They mentioned every detail required to be mentioned in the ER-1 returns. The adjudicating authority has equated suppression with non-declaration of something not even required to be declared as per law. The Supreme Court in case of Central Excise Vs. Chemphar Drugs ....