TMI Blog2013 (9) TMI 499X X X X Extracts X X X X X X X X Extracts X X X X ..... ssue stands settled against the respondent in the present case by the Hon’ble Supreme Court’s judgment in the case of Maruti Suzuki Ltd. [2009 (8) TMI 14 - SUPREME COURT ] Extended period of limitation – Intention to evade payment of duty – Held that:- In the instant case, the respondent did not deny the department’s allegation that they had contravened various provisions with intent to evade payment of duty - Respondent had not contested the demand of duty in the first show-cause notice on the ground of limitation - Respondent did not deny the allegation that they had suppressed the sale of surplus electricity to the AP Transmission Corporation and the contravention of Rules with intent to evade payment of duty - This allegation was raised in the show-cause notice both in the context of invoking the extended period of limitation and in the context of invoking the penal provisions of Section 11AC. In the total absence of denial of this allegation, it has to be held that the respondent is liable to be mulcted with a penalty under Section 11AC and also extended period of limitation is invokable on them – Decided in favor of revenue. - Appeal No. 2053/2011 - - - Dated:- 31-1-2013 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Act, besides Rule 13/15 of the CENVAT Credit Rules 2001/2002/2004, to impose penalties on the party. The remaining show-cause notices were issued within the normal period of limitation. However, 2 of these notices invoked Section 11AC for imposition of penalty and the remaining 3 show-cause notices invoked Rule 15(1) of the CCR 2004 for imposing penalty. The party replied to all the show-cause notices contesting the demands on merits. The adjudicating authority rejected their contentions and confirmed the demands against them and imposed penalties on them vide order-in-original No. 9/2010 dated 30.08.2010. Aggrieved by this order, the assessee preferred an appeal to the Commissioner (Appeals). The appellate authority set aside the demand for the extended period of limitation and upheld the demands for the normal period. However, the penalties imposed on the assessee under Section 11AC of the Act and Rule 15(1) of the CCR 2004 were set aside by the appellate authority in the absence of proof of malafides or suppression of facts on the part of the appellant and in view of the matter being interpretative in nature. The present appeal of the revenue is directed against (a) the drop ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Finally the learned Superintendent prays for allowing this appeal. 3. The learned counsel for the respondent submits that, before the decision of the Hon ble Supreme Court in the case of Maruti Suzuki Ltd. Vs. CCE, Delhi [2009 (240) E.L.T. 641 (S.C.)], the view that prevailed on the question whether CENVAT credit could be denied to a manufacturer in respect of inputs to the extent used in the generation of electricity supplied outside the factory was in favour of the respondent and the same was pleaded before the adjudicating authority also. It is claimed that the respondent had a strong case on merits and hence did not plead limitation against the demand for the extended period. The learned counsel has also argued in support of the last para of the impugned order. In this connection, he points out that, in the case of Maruti Suzuki Ltd., the Hon ble Supreme Court took note of the conflict of views expressed by various benches of the Tribunal and set aside the penalty even after upholding the denial of CENVAT credit on inputs used in the generation of electricity which was not captively consumed. The learned counsel has also relied on Chattisgarh Electricity Co. Ltd. Vs. CCE, Ra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uppression of a material fact and contravention of statutory provisions with intent to evade payment of duty were clearly alleged in the show-cause notice as seen above. I have perused the respondents reply to this show-cause notice also and found that they did not deny the above allegation. Before the original authority, they chose to contest the demand on merits and did not plead limitation against it. Before the appellate authority, however, they set up a plea of time-bar. They pleaded that the demand for the period up to November 2005 was beyond normal period of limitation and that they had not indulged in any suppression, fraud, mis-statement attracting invocation of the extended period of limitation. They further pleaded that all the material facts were within the knowledge of the department and hence the extended period of limitation was not invocable. They also cited certain decisions of the Hon ble Supreme Court. They also indicated that they had been regularly filing returns with the department during the entire period. The learned Commissioner (Appeals) accepted these submissions of the party. As rightly pointed out by the learned Superintendent (AR), the decision of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e demand for the extended period is unsustainable on facts and in law. Accordingly that decision is set aside. 5. Before parting with this era, I have perused the Tribunal s order rendered in the case of Chattisgarh Electricity Co. Ltd. (supra) and it is found that the demand for the extended period was set aside in the absence of intention to evade payment of duty. That decision is inapplicable to the instant case wherein the respondent did not deny the department s allegation that they had contravened various provisions with intent to evade payment of duty. 6. Coming to the penalty-related issue, I find that the respondent claims legitimate support from para 21 of the Hon ble Supreme Court s judgment in Maruti Suzuki case, which reads as under: Before concluding, it may be clarified that on account of repeated amendments in the CENVAT Credit Rules, huge litigation in the country stands generated. In the circumstances, we are of the view that penalty is not leviable on appellant/assessee, particularly when in large number of other cases, on account of conflict of views expressed by various Tribunals/High Court, the assessees have also succeeded. Hence, although M/s. Maruti S ..... X X X X Extracts X X X X X X X X Extracts X X X X
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