M/S. Veecon Ipa Gasteenik Ltd vs Commissioner Of Central Excise
- CitationExcise Appeal No. 59188 of 2013 - Ex (SM)
Ratio decidendi
The rule this decision rests on
The show cause notice, issued on 30.8.12 to deny Cenvat credit that the assessee had taken suo motu and intimated to the department on 26.11.08, was issued beyond the normal limitation period and invoked the extended period without a sustainable basis; a demand founded on such a notice is time-barred and the adjudication order based on it cannot be sustained.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
[Arising out of Order-In-Appeal No. 119/CE/APP/2012 dated 6.6.2013 passed by Commissioner of Central Excise (Appeals), Delhi II]
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. Veecon Ipa Gasteenik Ltd. Appellants
Vs.
Commissioner of Central Excise Respondent
Delhi II
Appearance:
Shri Awneet Singh, Advocate for the Appellants
Shri A K Dhawan, AR for the Respondent
CORAM:
Hon'ble Shri Ashok Jindal, Member (Judicial)
Date of Hearing /decision: 16.1.2015
FINAL ORDER NO. A/ 50108 /2015-Ex(SM)
Per Ashok Jindal :
The appellant is in appeal against the impugned order demanding the duty along with interest and imposition of penalty.
2. Brief facts of the case are that the appellant cleared their goods to 8 units in SEZ and paid the duty inadvertently as they are not required to pay the duty on clearance to SEZ units. Later on, they filed the rebate claim but they withdraw their rebate claim application but took the suo moto credit and informed the department taking the recredit on 26.11.08. Thereafter the show cause notice was issued to them on 30.8.12 to deny the availment of Cenvat credit suo moto taken by the appellant. The show cause notice was adjudicated. The adjudicating authority allowed the availment on suo moto taken credit on merits and have not given any finding on limitation but the said order was appealed against by Revenue before the learned Commissioner (Appeals) who set aside the order of adjudication. Therefore, the appellant is before me.
3. Heard the parties.
4. Considering the fact that in this case the appellant have taken the suo moto credit with intimation to the department on 26.11.08. Thereafter the show cause notice was issued on 30.8.12 is barred by limitation as show cause notice has been issued by invoking the extended period of limitation. In these circumstances, the impugned order is not sustainable in the eyes of law. Accordingly, the same is set aside. Appeal is allowed with consequential relief.
(dictated and pronounced in the open court )
( Ashok Jindal ) Member(Judicial)
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