TaxTMI 
TaxTMI 
2016 (11) TMI 519
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....rrectly availed and Rs. 12,98,515/- alleged to have been short paid as tax on rendering of output services. The notice dated 31st May 2010 also proposed appropriation of Rs. 1,75,93 837/- already paid towards the amount due as well as interest of Rs. 54,05,156/- remitted during the investigations. For the period from April 2009 to September 2009, notice dated 1st October 2010 demanded an amount of Rs. 1,13,17,845/- for alleged wrongful availment of CENVAT credit. 2. M/s ThyssenKrupp Industries India Pvt Ltd is a manufacturer who also renders 'on-site' services and the allegations relate to the CENVAT credit account maintained at Pimpri. The demands proposed in the first show cause notice were for the centralized location at Pimpri having availed the credit of tax paid on services utilised at the Hyderabad facility, availment of credit of tax paid on services rendered to the headquarters facility, inability to furnish some documents relating to credit availed at Pimpri, availment of credit on ineligible input services, availment of credit before payments towards invoices were discharged, availment of credit on 'bought out' items supplied directly to site, wrong availment of credit ....
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....s in appeal against the apparent appropriation of amounts towards the amounts confirmed, albeit held as time-barred, as well as the minor amount of Rs. 11,760/- confirmed in disposing off the second notice. 6. Considering the magnitude of the disputed amount that has been set aside on grounds of limitation, our primary obligation is to determine the correctness of that decision before proceeding to evaluate the findings on merits. The adjudicating authority has taken notice of audits in February 2005, March 2005, in March-April 2006, September 2005, in 2006 and in January-February 2009 to conclude that assessee was subject to periodic audits/scrutiny. It was also noticed that a number of notices in connection with taxes and duties pertaining to turnkey projects had been issued to the assessee implying that the scope of activities as well as their records had been subject to verification earlier. It was further noticed that the entire sets of demands were computed from the documents maintained and furnished by the assessee. The impugned order also finds that the entitlement of CENVAT credit was a dispute over interpretation of the statutory provisions and that, in those circumstanc....
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....he Company's cases in respect of units, which were ordered to pay duty on empty glass bottles and crates before the tribunal at Bangalore and Mumbai and, therefore, we are not expressing any view thereon at the prima facie stage in a case dealing with the unit, which received the used empty glass bottles and crates on payment of duty by the other unit at Nashik. The point of 'as such' is answered by the Larger Bench decision Modernova Plastyles Pvt. Ltd. v. Commissioner - 2008 (232) E.L.T. 29, where the Tribunal held that the expression 'as such' covers new/unused or used goods. We are also prima facie satisfied that in view of the two audits, there does not appear to be suppression or wilful misstatement more so when, 4 charts annexed to the appeal of the Company at pages 422 to 425, on which heavy reliance was placed, relating to payment of excise duty on used empty glass bottles and crates by different units of the Company located in Gujarat, Rajasthan, Goa, Madhya Pradesh etc. have not been refuted or rebutted by the Commissioner in the order." 6. It is seen from the above that the Tribunal took into account several factors while waiving the requirement of predeposit. The Trib....
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....of the issue and he has also observed that when correspondence made by Superintendent, appellant did not gave a correct reply. In our view, this would be sufficient even though it would have been proper if detailed discussions would have been recorded and conclusion arrived at. 9. The above make it clear that circumstances of cognizance do not detract from the evidence of suppression that was indulged in by an assessee with intent to evade duty or tax. We cannot but be in agreement with that proposition. However, the qualification in re Chemfab Alkalis Ltd too must be given its appropriate importance; it is not that the fact of audit is to be discountenanced but that it chose to distinguish the facts therein from Hindustan Coco Cola Beverages Pvt Ltd v. Commissioner of Central Excise Thane - I [2009 (242) ELT 45 (Tri-Mum)] which was itself a disposal of a stay application. We cannot ignore the scope and frequency of audit of large units that has specifically been highlighted supra in re Chemfab Alkalis Ltd as the distinguishing feature of the system. To that extent, the contention in the grounds of appeal that audit is a limited activity may not be acceptable. From the enumeration....
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.... lose by suppressing it. Hence, declarations in the semi-annual returns are adequate defense against the allegation of suppression. 13. We also bear in mind that the provision for extending the period of limitation was originally enacted because suppression of fact, willful misstatement et al cannot be ruled out in discharge of duty/tax liability. That, in the present context, would entail application of that provision to the utilization of CENVAT credit towards discharge of tax liability which is not in dispute here. The applicability of section 73 to rule 14 of CENVAT Credit Rules, 2004 is qualified by the expression 'mutatis mutandis' besides admitting to two mutually exclusive possibilities. In the context, it is more pertinent to note that suppression of fact is not the mirror image of lack of awareness by the tax authorities for, if that were to be so, the statutory provision of section 73 of Finance Act, 1994 relating to the normal period of limitation would be redundant as would the dichotomy specified in rule 14 of CENVAR Credit Rules, 2004. On the contrary, it is the availability of information or its lack thereof that should determine suppression of fact. Information ca....