TaxTMI 
TaxTMI 
2021 (5) TMI 741
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....on 11A(4) of the Central Excise Act, 1944 read with Rule 14 of the CENVAT Credit Rules, 2004; interest at the appropriate rate on the aforesaid amount should not be recovered from the petitioner under section 11AA of the Central Excise Act, 1944; and as to why penalty should not be imposed under Rule 15 of the CENVAT Credit Rules, 2004 read with section 11AC of the Central Excise Act, 1944. 4. Petitioner is a company incorporated under the Companies Act, 1956 having its factory at Bhiwandi Wada Road, Palghar, Maharashtra. Petitioner is engaged in the business of manufacturing, selling and distribution of beverages under the brand name of Coca-cola, Thums Up, Sprite, Fanta, Limca etc. 5. It is stated that petitioner has 25 units at different locations across India. For each of the units, petitioner had obtained separate registration under the provisions of the Central Excise Act, 1944 (briefly 'the Act' hereinafter). 6. According to the petitioner, as per terms of sale agreement with the customers, it sold the goods on Free on Road (FoR) basis, thus the risk and reward of ownership of the goods passed on to the distributors at their destination. In the course of business, p....
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.....05.2019 on several grounds. It is submitted that CENVAT credit on outward goods transport agencies (GTA) is eligible to the petitioner even post 01.03.2008. It is contended that respondent No.3 failed to appreciate that petitioner is eligible to avail CENVAT credit of service tax paid on transportation charges incurred for transportation of its products from its factories / depots to the customer places. According to the petitioner this view is fortified by several decisions of the Supreme Court. 10.1. Another ground on which the show cause-cum-demand notice has been impugned is that it is contrary to the circular dated 08.06.2018 of the Central Board of Indirect Taxes and Customs. It is submitted that the investigation and the consequential show cause-cum-demand notice pertain to alleged wrongful availment of CENVAT credit of outward transportation beyond the place of removal. Respondent No.3 has invoked the extended period of limitation under section 11A(4) on the ground that petitioner with mala fide intent to avail ineligible CENVAT credit had fraudulently contravened various statutory provisions. Referring to the circular dated 08.06.2018 more particularly to paragraph 7 t....
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....f the Central Board of Indirect Taxes and Customs to submit that there is no case at all for invocation of the extended period of limitation to issue the show cause-cum-demand notice to the petitioner. On that count itself, the show cause-cum-demand notice is liable to be interfered with being beyond limitation and thus without jurisdiction. He submits that the authority was required to first decide the jurisdictional facts before issuing the show cause-cum-demand notice. 14. However, Mr. Jetly, learned senior counsel for the respondents submits that present is not a case where the writ jurisdiction of the High Court under Article 226 of the Constitution of India should be invoked. A show cause notice has been issued to the petitioner. Petitioner can certainly contest the show cause notice by submitting its reply which will be followed by an adjudication by the adjudicating authority. The adjudication process is a quasi-judicial one where full opportunity of hearing will be provided to the petitioner. If the order-in-original passed pursuant to such adjudicating process goes against the petitioner or the petitioner is aggrieved by the same, he has adequate and efficacious remedy....
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....VAT credit by the petitioner would not have been unearthed. Therefore, section 11A(4) of the Act would be applicable to enable invocation of the extended period of limitation. In the above backdrop, the show cause-cum-demand notice has been issued by invoking section 11A(4) of the Act read with section 174 of the Central Goods and Services Tax Act, 2017. Consequently, petitioner has been called upon to show cause as to why irregular CENVAT credit of Rs. 2,02,30,256.00 for the period from April, 2014 to June, 2017 wrongly availed of should not be recovered under section 11A(4) of the Act read with Rule 14 of the CENVAT Credit Rules together with recovery of interest and imposition of penalty. Along with the petitioner, five of its officers have also been show caused as to why penalty should not be imposed separately on each of them under rule 26(2)(ii) of the Central Excise Rules, 2002. 17. We find that against a similar show cause-cum-demand notice dated 05.06.2019 petitioner had filed a writ petition before the Gujarat High Court which was registered as Special Civil Application No.15203 of 2019. The said writ petition was dismissed on 16.09.2019 by giving liberty to the petiti....