Bilag Industries Pvt.Ltd., Shri Pramod ... vs Cce Daman

Appeal No.E/518-519/2009; Application No.E/MA(Extn)/14379-14380/2014 [Arising out of OIA No.KKS/440-441/Daman/2008, dt.05.11.2008, passed by: Commissioner of Central Excise & Customs (Appeals), Vapi]

Bilag Industries Pvt.Ltd., Shri Pramod S. Patel Appellant

Vs

CCE Daman Respondent

Represented by:

For Assessee: Shri Anand Nainawati, Adv.

For Revenue: Shri S.K. Mall, Addl.Commissioner (AR)

For approval and signature:

Mr. P.K. Das, Honble Member (Judicial)

1. Whether Press Reporters may be allowed to see the No Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?

2. Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?

3. Whether their Lordships wish to see the fair copy of Seen the order?

4. Whether order is to be circulated to the Departmental Yes authorities?

CORAM:

MR. P.K. DAS, HONBLE MEMBER (JUDICIAL)

Date of Hearing/Decision:06.01.15

Order No. A/10021-10022 / 2015, dt.06.01.2015

Per: P.K. Das

1. The relevant facts of the case, in brief, are that the appellants are engaged in manufacture of Technical Grade Pesticides. They used Furnace oil for generating electricity, which was used captively as well as to other units in the same premises. A show cause notice dt.10.09.2007 was issued proposing to disallow CENVAT Credit of Rs.12,00,552.00 along with interest and penalties on the Furnace oil used in generation of electricity cleared to other units during the period from April 2003 to November 2003. The adjudicating authority confirmed the demand of CENVAT Credit along with interest and also imposed penalty of equal amount. A penalty of Rs.3,00,000.00 was imposed on Shri Pramod S. Patel (Appellate No.2) General Manager of the appellant company under Rule 26 of Central Excise Rules 2002. The Commissioner (Appeals) upheld the adjudication order and rejected the appeal filed by the appellant.

2. Ld.Advocate on behalf of the appellant fairly submits that the merits of the case is against them in view of the decision of Honble Supreme Court in the case of Maruti Suzuki Vs CCE  2009 (240) ELT 641 (SC). He strongly contested the demand of duty on limitation. He submits that there was a demand of CENVAT Credit on the identical issue in their own case by show cause notice dt.12.08.2005 for the period December 2001 to March 2003, which was set aside as time barred by the Tribunal vide Final Order No.A/877-882/WZB/AHD/2012, dt.04.06.12. He submits that an amount of Rs.8,158.00 out of Rs.12,00,552.00, is relating to denial of CENVAT Credit on the ground that the documents were not in the name of the company. He submits that they are not contesting the demand of Rs.8,158.00.

3. On the other hand, ld.Authorised Representative for the Revenue reiterates the findings of the Commissioner (Appeals). He submits that the earlier decision of the Tribunal is not applicable in the present case.

4. After hearing both the sides and on perusal of the records, I find that on the identical issue, a show cause notice dt.12.08.2005 was issued proposing denial of CENVAT Credit for the earlier period from December 2001 to March 2003. Division Bench of the Tribunal vide Final Order No.A/877-882/WZB/AHD/ 2012, dt.04.06.2012 set aside the impugned order on the ground of limitation. The relevant portion of the said decision is reproduced below:-

8. As regards the appeal No.E/248/2006 in Order-in-Appeal No.KS/268/ Daman/2006, dt.21.8.2008, we find that the Show Cause Notice is issued on 12.08.2005 for the period December 2001 to March 2003. It is surprising to note that this period is also included in the Show Cause Notice dt.28.04.2004 while confirming demand of reversal of CENVAT Credit of Rs.50,79,458/-, which was decided as hit by limitations in assessees favour. Be that as it may, the Show Cause Notice dt.12.08.2005 is belatedly time barred, inasmuch as the very same issue was in question in the earlier Show Cause Notice dt.28.04.2004 and hence the Revenue could not have invoked the extended the period of limitation in this Show Cause Notice. Accordingly, the impugned order in this appeal is upheld in toto and the Revenues appeal is rejected.

5. The present show cause notice dt.10.09.2007 was issued for the period from March 2003 to November 2003. In my considered view, when the demand of duty against the earlier show cause notice was set aside as time barred, thus, the demand of duty for the extended period of limitation, on the same facts in the present show cause notice cannot be sustained. The findings of the Tribunal in the appellants own case for the earlier period would be squarely applicable in the present case. Hence, demand of CENVAT Credit to the extent of Rs.11,92,394.00 along with interest and penalty is set aside is barred by limitation. In so far as demand of CENVAT Credit of Rs.8,158.00 along with interest and penalty is upheld. Penalty imposed on the appellant No.2 cannot be sustained. Accordingly, appeal filed by the appellant No.2 is allowed with consequential relief. Application for extension of stay order is disposed of.

(Dictated & Pronounced in Court)

(P.K. Das) Member (Judicial)

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