M/S. Sunmarg Ispat Pvt. Ltd vs Commissioner Of Central Excise
- CitationExcise Appeal No. 58082 of 2013 - ST (SM)
Ratio decidendi
The rule this decision rests on
Where the entitlement to Cenvat credit on the disputed items was unsettled at the time of the assessee's declaration and availment, and the matter was thereafter settled by a Larger Bench decision, the extended period of limitation cannot be invoked to demand the credit, because the assessee's conduct in declaring and availing the credit in the absence of settled law does not amount to suppression, misstatement or wilful default warranting an extended period. Where the demand is made beyond the normal limitation period and the extended period is held not invokable, the demand is barred by limitation and the order confirming it is set aside.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
[Arising out of Order-In-Appeal No. 53/RPR-I/2013 dated 22.02.2013 passed by Commissioner of Central Excise & Customs (Appeals) Chhattisgarh]
For approval and signature:
Honble Mr Ashok Jindal, Member (Judicial)
1 Whether Press Reporters may be allowed to see the 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 the Order?
4 Whether Order is to be circulated to the Departmental authorities?
M/s. Sunmarg Ispat Pvt. Ltd. Appellants
Vs.
Commissioner of Central Excise Respondent
Customs & ST, Chhattisgarh
Appearance:
Shri Puneet Agarwal, Advocate for the Appellants
Shri R K Mishra, AR for the Respondent
CORAM:
Hon'ble Shri Ashok Jindal, Member (Judicial)
Date of Hearing /decision: 1.1.2015
FINAL ORDER NO. A/ 50017 /2015-Ex(SM)
Per Ashok Jindal :
The short issue involved in the matter is that whether the extended period of limitation is invokable in the facts of these cases as also the usage of MS angle, channel, joints, plates, MS bars for the period March, 2007 or not.
2. The contention of the appellant is that they have declared the said usage of these items and availment of Cenvat Credit to the department through ER 1 return filed in June, 2007 and thereafter a show cause notice was issued to the appellant in 2008 by invoking the extended period of limitation. The contention of the learned AR for the appellant is that the issue whether the assessee was entitled to avail Cenvat Credit on items in question, at that time was pending before the Larger Bench of this Tribunal in the case of Vandana Global Ltd. [2010 (253) ELT 440] which was decided by this Tribunal on 30.4.2010. Therefore, he pleads that extended period of limitation is not invokable. Cenvat Credit accordingly, demands are barred by limitation. Hence, the impugned order needs to be set aside.
3. Learned AR submits that as Larger Bench of this Tribunal has held that assessee is not entitled to take Cenvat credit on these items, although it was in dispute, but it was in the knowledge of them that they are not entitled to take Cenvat credit, therefore extended period of limitation is rightly invoked,.
3. After considering the submissions of both the sides, I find that entitlement of Cenvat credit on the items in question has been decided by Larger Bench of this Tribunal in the case of Vandana Global Ltd. (supra) in April, 2010. Therefore, prior to that some decisions are in favour of the appellant but some in favour of Revenue. In these circumstances, I hold that extended period of limitation is not invokable. Therefore, I hold that demands in question are barred by limitation, therefore the impugned order is set aside and the appeal is allowed with consequential relief (if any).
4. Appeal is disposed of in the above terms.
(dictated and pronounced in the open court )
( Ashok Jindal ) Member(Judicial)
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