Home Case Index All Cases Central Excise Central Excise + AT Central Excise - 2024 (3) TMI AT This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2024 (3) TMI 6 - AT - Central ExciseRecovery of excess CENVAT Credit alongwith interest and penalty - Nature of Duty Paid by 100% Export Oriented Units (EOU) - ineligible credit availed on the duty component of Basic Customs Duty, Education Cess and Secondary Higher Education Cess paid on the iron ore by the 100% EOU as per Sl. No.4 of Notification No.23/2003 CE dt. 31.3.2003 - Time Limitation - Suppression of facts or not - penalty - HELD THAT:- A plain reading of the said Sl. No.4, it is clear that the circumstances and corresponding method of computation of duty and quantum required to be paid by an 100% EOU in DTA is different from the duty payable against Sl. No. 2 of the said Notification. Therefore, no doubt the duty paid by an 100% EOU be considered as Excise duty in view of the principle of law settled by the Larger Bench in VIKRAM ISPAT VERSUS COMMISSIONER OF CENTRAL EXCISE, MUMBAI-III [2000 (8) TMI 111 - CEGAT, NEW DELHI]. In the instant case, the department has adopted a wrong basis in denying a portion of the CENVAT credit to the appellant of the duty paid by 100% EOUs, on the ground that component of BCD and applicable EC & SHEC on the BCD adopted in computing aggregate duties of Customs, which is nothing but Excise duty being not mentioned in Rule 3(1) of CCR, 2004, hence, not admissible. The said reasoning adopted by the Learned Commissioner in denying a portion of the duty as CENVAT credit cannot be sustained being contrary to the principle of law laid down in Vikram Ispat’s case. Time Limitation - Suppression of facts or not - penalty - HELD THAT:- From the records of the case, it is clear that the appellants have been availing CENVAT credit on the duty paid by 100% EOU after duly reflecting the same in the relevant monthly ER-1 returns filed with the department periodically and the present demand relates to a portion of CENVAT credit held to be inadmissible. Thus, there are no merit in the allegation of the department that the appellant had suppressed availing of excess amount of CENVAT credit against the duty paid by 100% EOUs reflected in the invoices with an intend to evade payment of duty. Accordingly, the demand confirmed invoking extended period of limitation cannot be sustained. Consequently, the penalty imposed also cannot be sustained. The impugned order is set aside - Appeal allowed.
|