TaxTMI 
TaxTMI 
2024 (6) TMI 176
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....land from NOIDA Authority with the sole & mala fide intent to avail inadmissible credit. Therefore, I find no reason to interfere in the findings of adjudicating authority in this regard." 2.1 The Appellant is engaged in manufacture of a rear view mirror and were also availing Cenvat credit on various inputs, capital goods, input services in terms of Cenvat Credit Rules, 2004. 2.2 During the course of audit it was observed that the Appellant had taken credit on service tax paid on commission charges paid to M/s Chopra Properties for purchase of land from Noida Authority for setting up a new manufacturing unit. 2.3 As Revenue was of the opinion that this credit is not admissible, a show cause notice dated 11.02.2016 was issued to the Appellant asking them to show cause as to why:- "a. The said Credit of Rs.6,79,800/- (Service Tax+Ed. Cess+ HS. Ed. Cess) (Rupees Six Lakhs Seventy Nine Thousand Eight Hundred only) should not be disallowed and recovered from them under Rule 14 of the CENVAT Credit Rules, 2004 read with Section 11A(4) of the Central Excise Act, 2004. b. Interest at appropriate rates on the said amount should not be charged and recovered f....
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....missible to them. • Show cause notice dated 11.02.2016 was issued to them on the basis of objection pointed out by invoking extended period of limitation under Section 11A(4) of the Central Excise Act, 1944 stating that Appellant had willfully suppressed the facts. • Extended period of limitation under Section 11A(4) of Central Excise Act cannot be invoked in the present case as • Appellant had completely disclosed the entire facts in their ER-1 Return as per the format provided. • all information was available on record and the show cause notice and confirmation of demand thereafter is based on information provided by them. • Demand could not be upheld which is made by invoking the extended period of limitation. Reliance is placed on the decisions of • Surya Vistacom Pvt. Ltd. [2022 (66) G.S.T.L. 290 (Cal.)]. • Meghmani Dyes & Intermediates Ltd. [2013 (288) E.L.T. 514 (Guj)]. • LG Electronics India Pvt. Ltd. [2024 (4) TMI 533]. • BCH Electric Ltd. [2013 (31) S.T.R.68 (Tri.-Del.)]. • Apex Electricals Pvt. Ltd. [1992 (61) E.L.T. 413 (Guj.)]. â€....
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.... 0 0 0 0 0 0 Credit Taken on Capital Goods on Invoices issued by Manufacturers or By I Or II Stage Dealers (Rs.) 7901 0 0 0 0 160 81 0 0 0 Credit Taken on imported capital goods (Rs.) 0 0 0 0 0 0 0 0 0 0 Credit Taken on input services (Rs.) 0 0 0 0 0 0 0 2583389 51670 25843 Credit Taken From Inter-Unit Transfer of Credit Under Rule 10A of CENVAT Credit Rules, 2004 0 0 0 2700000 0 0 0 0 0 0 Total Credit Available (Rs.) 7042831 0 0 2700000 0 143492 71691 2583389 51670 25843 4.3 Details of credit taken in respect of input services during the period includes the Cenvat credit taken in respect of deposit as is evident from the chart available on the page 83-85 of the appeal paper book. Relevant extract is reproduced as follows:- DETAILS OF SERVICE TAX CREDIT TAKEN FOR THE MONTH MAR-2014 Date Description Su code Particulars Bill No. Bill Date Service Tax Ed Cess Sec Cess 28-02-14 AP140228116309 D063 DHL Express (I) Pvt. Ltd. DEL781146 21-02-14 7,515 150 ....
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....c allegation or prima facie finding of any wilful misstatement or suppression on the part of the assessee. That apart, the details have been culled out by the adjudicating authority from the available records and there is no new or fresh tangible materials available in the hands of the adjudicating authority to make out a case of wilful misstatement or wilful suppression. Therefore, the Tribunal was fully justified in holding that the extended period of limitation could not have been invoked." 4.6 In case of Meghmani Dyes & Intermediates Ltd.(supra) has held as follows:- "37. The judgment of the Supreme Court in the case of Chemphar Drugs and Liniments (supra) relied upon by learned advocate Mr. Ravani will not help the Revenue in any manner. In Chemphar Drugs and Liniments (supra), the Apex Court has held that extended period of five years was applicable only when something positive other than any inaction or failure on the part of the manufacturer or conscious or deliberate withholding of information when the manufacturer knew otherwise, is established. When the department had full knowledge about the facts and the manufacturers' action or inaction is based on their b....
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....er to initiate proceedings where duty has not been levied or short-levied within six months from the relevant date. But the proviso to Section 11A(1), provides an extended period of limitation provided the duty is not levied or paid or which has been short-levied or short-paid or erroneously refunded, if there is fraud, collusion or any wilful mis-statement or suppression of facts, or contravention of any of the provisions of this Act or of the rules made thereunder with intent to evade payment of duty. The extended period so provided is of five years instead of six months. Since the proviso extends the period of limitation from six months to five years, it needs to be construed strictly. The initial burden is on the department to prove that the situation visualized by the proviso existed. But the burden shifts on the assessee once the department is able to produce material to show that the appellant is guilty of any of those situations visualized in the Section." 40. We shall also look into the judgments which have been relied upon by Mr. Dave appearing for the assessees. 41. In the case of Jindal Aluminium Ltd. (supra), the Division Bench of Karnataka High Court....
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....entral Excise Act is like a first appeal under Section 96 C.P.C. inasmuch as findings of fact can also be gone into and the CEGAT can re-appreciate or reassess the evidence. Thus the orders of the Assistant Commissioner and the Commissioner (Appeals) merge into the order of the CEGAT by the doctrine of merger, and the only order which now survives is the order of CEGAT. Hence the reference to the orders of the Assistant Commissioner and the Commissioner (Appeals) is wholly misconceived, as these orders no longer survive after the order of the CEGAT. The CEGAT has recorded a clear finding of fact that there is no suppression, and hence, obviously, the demand was time-barred since the larger period of limitation under the proviso to Section 11A is not applicable." 43. Thus, the principles of law discernible from the authoritative pronouncements referred to above are plain and clear. To make the demand for duty sustainable beyond the period of six months and upto a period of five years in view of the proviso to Section 11A of the Act, the Revenue is obliged to establish by cogent evidence that the duty of excise has not been levied or paid or short-levied or short-paid or err....
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....xcise Officer to proceed to recover duties in the manner indicated in proviso to Section 11A of the Act. We are, therefore, of the firm opinion that where facts were known to both the parties, as in the instant case, it was not open to the CEGAT to come to a conclusion that the appellant was guilty of "suppression of facts". In Densons Pultretaknik v. Collector of Central Excise [2003 (11) SCC 390], this Court held that mere classification under a different sub-heading by the manufacturer cannot be said to be willful mis-statement or "suppression of facts". This view was also reiterated by this Court in Collector of Central Excise, Baroda v. LMP Precision Engg. Co. Ltd. [2004 (9) SCC 703]." 4.12 Hon'ble Supreme Court in the case of Continental Foundation Jt Venture [2007 (216) ELT 177 (SC)] held as follows: "10. The expression "suppression" has been used in the proviso to Section 11A of the Act accompanied by very strong words as 'fraud' or "collusion" and, therefore, has to be construed strictly. Mere omission to give correct information is not suppression of facts unless it was deliberate to stop the payment of duty. Suppression means failure to disclose full in....