TaxTMI 
TaxTMI 
2015 (5) TMI 168
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.... following substantial question of law: "Whether Tribunal was justified in holding that extended period of limitation under Rule 15 of the Cenvat Credit Rules, 2004 and Section 11 (A) (1) of the Central Excise Act, 1944 was not attracted in this case?". Facts relevant for deciding the present central excise appeal are as follows: M/s. Rathi Steel and Power Ltd., Industrial Area, G.T. Road, Ghaziabad *hereinafter referred to as the "assessee") is engaged in manufacture of T.M.T./TOR Steel, S.S. Billets, S.S. Flat, M.S. Billet, etc. The assessee is also registered with Central Excise Department and was availing the facilities of Cenvat Credit on items, namely, Shape & Section, M.S. Plate, H.R. Plate, M.S. Channel, Angles, Roughly Shaped, Forged Rolls, Paints & Primer, Aluminum Bar etc. as "capital goods". During the scrutiny of the records of the assessee for the financial year 2005-2006 by the Audit Team of Central Excise, Ghaziad, it was noticed that the assessee had taken Cenvat Credit on items namely, Shape & Section, M.S. Plate, H.R. Plate, M.S. Channel, Angles, Roughly Shaped, Forged Rolls, Paints & Primer, Aluminum Bar etc. as "capital goods", when which did not ap....
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.... credit taken by the assessee from time to time were duly communicated to the department. Reference was made to the letter of the Range Superintendent dated 19th November, 2007, which was replied on 30th November, 2007, letter dated 19th September, 2008 issued by the Range Office, which was replied vide letter dated 14th November, 2008. Information asked for in desired format under letter dated 19th November, 2008, which was duly complied with under letter dated 15th December, 2008 and finally a request letter dated 3rd September, 2009 asking for the credit of capital goods being granted, were referred to in support of the said plea. It was the case of the assessee that the department was all along aware about the Cenvat Credit availed of by the assessee during the relevant period. There was no doubt in the minds of the officers of the department about the admissibility of credit claimed by the assessee. The Range Officers visited the factory of the assessee in the last week of December, 2009 for verification. Nothing wrong was pointed out. It is the case of the assessee that an oral observation was made by the range officer at the time of visit to the factory for not agreein....
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....he aforesaid judgment and further since earlier orders were in favour of the assessee, no mala fide can be attributed to the assessee so as to invoke the longer period of limitation. There has been no suppression on the part of the assessee. The Tribunal has proceeded to set aside the demand of Cenvat credit along with penalty except for the demand of a sum of Rs. 54,000/-, which aspect of the matter has also been remanded to the Original Adjudicating Authority for decision afresh. The order of the Tribunal insofar as it holds that on merit issue of availment of cenvat credit on the said items stands decided against the assessee is not in question before us, inasmuch as the assessee has not filed any appeal against the said part of the order of the Tribunal. The issue, which remains to be examined by this Court is as to whether the Tribunal was justified in holding that the extended period of limitation under Rule 15 of Rules, 2004 read with Section 11A (1) of Act, 1944 was attracted in the facts of the case or not. Learned counsel for the department points out that the Tribunal has failed to appreciate that the assessee had knowingly and willfully indulged in availment of....
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....I; 2007 (216) E.L.T. 177 (S.C.). It is his case that mere omission to give correct information is not suppression of facts unless it was deliberate with a purpose to avoid payment of the duty. According to him, an incorrect statement cannot be equated with a willful mis-statement. It is also submitted that if there was a scope for entertaining a doubt about the view being taken, it necessarily rules out application of Section 11A of the Act, 1944 i.e. extended period of limitation would not be available. We have considered the submissions made by the learned counsel for the parties and have examined the records of the present central excise appeal. At the very outset, we may record that the findings of the Tribunal in the order under consideration qua the cenvat credit having been wrongfully availed of by the assessee on various iron steel items between 1st April, 2005 to 31st December, 2009 is not in dispute. The finding of the Tribunal in that regard against the assessee has become final, as the order has not been subjected to challenge any further by the assessee. We have only to examine as to whether there has been suppression of facts on the part of the assessee in....
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....w in that regard has been settled by the Tribunal in the case of Vandana Global Ltd. (Supra) is clearly an after thought and attempt to improve upon his explanation, as was furnished before the Commissioner wherein the assessee had admitted that steel items had not been used for supporting structure of foundation in any manner. We further find that under Rule, 2004, a burden is cast upon the manufacturer to ensure that cenvat credit is correctly claimed by them and proper records are maintained in that regard. The assessee, in response to the show-cause notice had stated that there is no provision in Central Excise Law to disclose the details of the credit or to submit the duty paying documents, which in our opinion is false and an attempt to deliberately contravene the provisions of the Act, 1944 and the rules made thereunder with an intent to evade the duty. In our opinion, the facts of the present case clearly suggest willful suppression of material facts by the assessee as well as contravention of the provisions of the Act and rules framed thereunder with an intent to evade the demand of duty as would be covered by Clauses IV and V of Section 11 A (1) of the Act, 1944.....