TaxTMI 
TaxTMI 
2018 (4) TMI 1673
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.... 23/2004-CE (NT) of even date. The said section 88 of finance act 2004 reads as follows:- "(1) In the Cenvat credit Rules, 2002 made by the Central Government in exercise of the powers conferred by Section 37 of the Central Excise Act, 1944, in Rule 3, in Sub-rule (6) of the Cenvat Credit Rules, 2002, in clause (b), the Explanation shall stand amended and shall be deemed to have been amended retrospectively in the manner as specified in the Second Schedule, on and from the corresponding date mentioned in column (3) of that Schedule and, accordingly, notwithstanding anything contained in any judgment, decree or order of any court, tribunal or other authority, any action taken or anything done or purported to have been taken or done as if the said Explanation as amended by this Sub-section had been in force at all material times. (2) For the purpose of Sub-section (1), the Central Government shall have and shall be deemed to have the power to make rules with retrospective effect as if the Central Government had the power to make rules under Section 37 of the Central Excise Act, 1944, retrospectively, at all material times. (3) The Cenvat credit shall be allowed of such additional....
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....00 seeking to question the very taking of the Credit of Additional Duty of Excise (goods of Special Importance) [AED (GSI] leviable under Additional Duty of Excise (Goods of Special Importance) Act, 1957. The credit of aforesaid AED (GSI) was paid by the supplier of the inputs. Ld. Counsel mentions that aforesaid Show Cause Notice dated 11.01.2005 related to the period even beyond period of 5 years, which is beyond jurisdiction and without authority of law. In so far as the aforesaid Show Cause Notice is within the period of 5 years, it is submitted that is not sustainable in as much as the extended period of 5 years is not even invoked in the Show Cause Notice dated 11.01.2005. (ii) Show Cause Notice dated 03.08.1998 for the period January, 1998 to 01.06.1998 demanding AED(GSI) from the assessee on an intermediate product i.e. Dipped Tyre Cord Fabric (DTCF). (iii) Show Cause Notice dated 04.01.1999 for the period 16.03.1995 to 31.12.1997 on the same ground as in S. No. (ii) above relating to Show Caus Notice dated 03.08.1998. Ld. Counsel mentions that it is interesting to note that this Show Cause Notice was issued invoking extended period of limitation in relation to a peri....
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.... Appellant "allowed to be utilized for the purpose of payment of AED (GSI) only and disallowed towards payment of any other duty." Similar observations made elsewhere in the body of the impugned Order are also unwarranted in law and in facts of this case, for the reasons outlined now. 3.6 In this regard, it is submitted that it was not open to the Adjudicating Authority to have made the aforesaid qualifying remark for number of reasons, apart from merits of the same: Firstly, the Show Cause Notice was confined to allege wrongful taking of the credit of AED (GSI), which was found to have been rightly taken by the Appellant. There was no Show Cause Notice to the Appellant, putting the Appellant to notice regarding any such qualifying remark. Therefore, this issue was beyond the scope of Show Cause Notice. Secondly, the Show Cause Notice having been issued beyond 5 yeas, was itself without jurisdiction and authority of law. Thirdly, the Show Cause Notice being barred by normal period of limitation and extended period of limitation having not been invoked, was not sustainable in the eyes of law. Therefore, for all the aforesaid reasons, the observations and qualifying remark made b....
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..... f) It may be clarified that with effect from 01.04.2000 Rules 57A to 57U were substituted by Rule 57AB and Rule 57AB(1)(b) specifically amending the law by replacing the words 'any final products' for 'any other final products', to make the position further clear in law in favour of the Industry. As such consequent to such amendment the provision relating to use of AED (GSI) for payment of BED on any final product, became absolutely clear and unquestionable. 3.8 In view of the aforesaid clear position in law, the qualifying remark of the Adjudicating Authority, restricting the utilization of credit taken by the Appellant of AED(GSI) for payment AED (GSI) only is clearly and directly in the teeth of the aforesaid decision of this Hon'ble Tribunal as upheld by the Hon'ble High Court of Allahabad in Appellant's own case. 3.9 In view thereof, the Appellant is respectfully praying that the aforesaid qualifying remark restricting the use of AED (GSI), made in Para 1 and 5 of the operative portion of the impugned Order read with findings made in this regard in the body of the impugned Order be st aside and it may be made clear that the Appellant Assessee is entitled to use the credit....
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....ot very clear both to the Assessee as well as to the Department. He further records that he would qualify the present case under the category of disputes arising due to interpretation of law. In view thereof, the Commissioner himself holds that confiscation in the present case is not justifiable and he specifically drops proposed penalty under Section 11AC. 3.15 In relation to the penalty imposed under Para 3 of impugned order, it is submitted that a bare perusal of the Show Cause Notice dated 03.08.1998 shows that none of the provisions under which the penalty has been confirmed in above para have even been invoked in the said Show Cause Notice. As such, the penalty so imposed is liable to set aside on this ground itself, without anything more. 3.16 Insofar as the penalty imposed under para 4 of impugned order, is concerned, it is submitted that the penalty under Rule 209 is subject to the provisions of Section 11AC of the Central Excise Act, 1944. Reference in this regard may be made to the decision of the Hon'ble Gujarat High Court in the case of CCE Vs. Harish Silk Industries - 2013 (288) ELT 74 (Guj.) wherein, the Hon'ble High Court, in relation to a similarly worded penal p....
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....or the normal period covering the six months period pertaining to January, 1998 to 1st June, 1998 was issued by the Divisional Assistant Commissioner, in terms of Section 11A vide SCN dated 03/08/1998 without resorting to invocation of extended period of clause. Whereas, the subsequent SCN dated 04th January, 1999 for the extended period of limitation in terms of proviso to Section 11A on the grounds of suppression of facts was issued later on by the Commissioner, after conclusion of enquiry conducted by the Department and submission of information/data, which was relevant to the facts of the case, by the appellant vide their letter dated 04th August, 1998. The SCN dated 04th January, 1999 pertaining to the period 16th March, 1995 to December 1997, which was very much within the permissible period of five years. The Department did not forfeit its right to invoke the extended period in the subsequent show cause notice upon issuing of the first show cause notice dated 03/08/1998 for the normal period of limitation. Further reliance is placed on the ruling of this Tribunal in the case of Saraswati Air Products Ltd Versus CCE reported at 1998 (98) ELT (391), wherein it was observed - ....
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....formation/data sought by the department. It was only after the continuous efforts of the department to extract the relevant information/data from the party, the relevant information for computation of duty liability for the period 15.03.1997 to December, 1998 was submitted by the party vide their letter dated 04.08.1998 i.e. just the day after the issuance of the first SCN for the normal period (January, 1998 to 1st June, 1998) on 03.08.1998. It was held by three member bench of Tribunal in the case of M/s Vinod Paper Mills Vs. Collector of Central Excise [1989 (39) ELT 105 (Tribunal)] in para 10 of their order that there was suppression as the total sales value was not disclosed to the department. (i) As the relevant information was not provided to the department and information as was required to be furnished under the law was not furnished to the department therefore the extended period clause in terms of proviso to Section 11A was correctly invoked in the SCN dated 04.01.1999. Accordingly, learned A. R. prays for allowing the appeal of the Revenue and dismissing the appeal filed by the assessee. 5. The ld. Counsel for the appellant assessee in reply to the Department's ap....