TaxTMI 
TaxTMI 
TaxTMI 
2026 (1) TMI 154
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.... period from 2016-17 and 201718 of the plant of the appellant at Pithampur, the audit team pointed out that the appellant had received excess CENVAT Credit of Rs. 96,02,623/- as it was allocated in excess by the Input Service Distributor. 3. Accordingly, a show cause notice dated January 17, 2022 was issued to the appellant. The show cause notice mentions that during the course of audit of the records of the appellant pertaining to the period from April 2017 to June 2017, the audit team noticed that the appellant availed CENVAT Credit of input services on the strength of invoices issued by the Input Service Distributor, but excess credit was passed on to the appellant in violation of the provisions of rule 7 of the CENVAT Credit Rules, 2004 [2004 Credit Rules]. The show cause notice also invoked the extended period of limitation and the relevant portion relating to the extended period of limitation is reproduced below : "3 (ii) In view of the above it is clear that, had the audit has not pointed out the irregularity of availing inadmissible credit the same would have remain unnoticed and will a loss to government exchequer. Therefore, the provisions of extended period o....
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....ever cared to submit any information regarding the same to the department. In view of the foregoing, I hold that the instant demand is rightly issued by invoking extended period of limitation." 6. The appellant filed an appeal before the Commissioner (Appeals) not only contesting the demand of central excise duty, but also contended that the extended period of limitation could not have been invoked. The Commissioner (Appeals) has examined the issue relating to extended period in paragraph 9 of the order and the same is reproduced below : "09. As regards invoking extended period of limitation by the Adjudicating Authority, the Appellant have submitted that there was no suppression whatsoever and the department was having full information with regard to the present case, as they have periodically filed their ER-1 return, and that it is well settled that when facts are within knowledge of the department, alleging willful suppression with an intention to evade duty is not correct. I find the Appellant while relying on the details being shown in their ER-1 returns did not disclose the details of cenvat credit availed by them, as the said returns only show summery of the Cenv....
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....period of limitation had been rightly invoked as the appellant had concealed material facts with an intent to evade payment of central excise duty. 9. The submissions advanced by the learned consultant appearing for the appellant and the learned authorized representative appearing for the department have been considered. 10. It is not in dispute that the appellant had disclosed the availment of the CENVAT Credit in the ER-1 return that had been filed. The Commissioner (Appeals) has, however, observed that as the said returns only show summary of the CENVAT Credit and do not give the details, the appellant had suppressed the material facts. 11. The appellant is supposed to disclose those facts which are specifically provided in the ER-1 return. ER-1 return does not provide for giving details of the CENVAT Credit. If there was any doubt, the officer examined the returns could have asked the appellant for production of the documents, but that was not done. 12. The period involved in this appeal is from April 2017 to June 2017 and the show cause notice was issued on January 17, 2022. The entire period is covered by the extended period of limitation contemplated under sectio....
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....m the relevant date, serve a notice to the person chargeable with the duty requiring him to show cause why he should not pay the amount specify in the notice. Sub-section (4) of section 11A, however, provides that where any duty of excise has not been levied or paid or has been short levied or short paid or erroneously refunded, by reason for fraud; or collusion; or any wilful mis-statement; or suppression facts; or contravention of any of the provisions of the Act or Rules made thereunder with intent to evade payment of duty, the Central Excise Officer shall, within five years from the relevant date service notice on such person requiring into show cause why he should not pay the amount specified in notice with interest and penalty. 15. It is clear that to invoke the extended period of limitation, there has to be, amongst others, suppression of facts. Even assuming that there is suppression, it is necessary that such suppression is wilful and with an intent to evade payment of central excise duty. This is what the Supreme Court and the Delhi High Court have held. 16. In Pushpam Pharmaceutical Co. vs. Commissioner of Central Excise, Bombay [1995 (78) E.L.T. 401 (SC)], the Sup....