TMI Blog2014 (1) TMI 1474X X X X Extracts X X X X X X X X Extracts X X X X ..... al has given absolutely no consideration either to the reasons indicated in the order of the Additional Commissioner while confirming the duty demand or to those contained in the order of the Commissioner (Appeals). Both these orders take note of the fact that the ER-1 Returns and Cenvat Credit Returns submitted by the assessee did not disclose or reflect that the additional customs duty had been paid through DEPB adjustments, nor did the returns show that the Bills of Entry were submitted to the department. Moreover, it has been found that the payment of additional customs duty through DEPB adjustments was not incorporated in any of the returns and it was only in the course of audit that it was found that the additional customs duty had no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of credit of additional Customs Duty paid through DEPB Scheme on the ground that the Respondent was in dark for the confusing or the divergent views expressed by the Tribunal in the Plethora of cases ?" The assessee is registered with the Central Excise Department for manufacture of automobile parts (articles of plastic) falling under Chapter sub heading No.3916.90 of the Schedule to the Central Excise Tariff Act, 1985. For the period December, 2003 to July, 2004, the assessee availed of Cenvat Credit of Rs.42,10,670/- on the strength of eleven Bills of Entry in which the additional customs duty had not been paid in cash but had been adjusted against Duty Entitlement Pass Book (DEPB). A notice to show cause was issued to the assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent to evade the central excise duty by debiting the duty through DEPB scheme. Accordingly, the party suppressed the fact by not following the procedure as prescribed and availed/utilized the Cenvat Credit wrongly. Hence extended period under Section 11(A) of Central Excise Act, 1944 is invokable in the instant case for recovery of inadmissible credit availed by them." A penalty in the like amount of Rs.42,10,670/- was imposed under Section 11-AC. In appeal, the Commissioner (Appeals) also held that under para 4.3.5 of the EXIM Policy of 2002-07 it had been made clear that additional customs duty paid in cash on inputs under DEPB scheme shall be adjusted against the Cenvat credit or duty drawback. Moreover, where additional customs duty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ludhiyana Vs. Neel Kanth Rubber Mills reported in 2010 (254) E.L.T 203 that the controversy was eventually resolved. Hence, the Tribunal was of the view that although on merits the assessee is not entitled to succeed, the appeal would have to be allowed only on the bar of limitation since the extended period of limitation was not applicable. Para 4.3.5 of the EXIM Policy for 2002-07 under which the licenses for import were issued provided as follows:- "Normally, the exports made under the DEPB scheme shall not be entitled for drawback. However, the additional customs duty/excise duty paid in cash on inputs under DEPB shall be adjusted against Cenvat credit or duty drawback as per rules framed by the Department of Revenue. In cases, wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be governed by the provisions of the earlier policies. The Tribunal, in the present case, has held that the notification dated 17 September 2004 would have only prospective effect. This view is in accord with the judgment of the Supreme Court in Commissioner of Central Excise Vs. Sunwin Technosolutions P. Ltd. reported in 2011 (21) S.T.R. 97 (SC). On this view the Tribunal was of the opinion that the assessee was not entitled to succeed on merits. However, what weighed with the Tribunal was that the invocation of the extended period of limitation under the proviso to Section 11-A(1) was not proper. In this regard, we find merit in the contention of learned counsel appearing on behalf of the revenue that the Tribunal has given absolutely ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich has to be considered by the Tribunal is as to whether, within the meaning of the proviso to Section 11-A(1), the short levy was by reason of fraud, collusion, willful misstatement or suppression of facts or contravention of the provisions of the Act or the rules with intent to evade payment of duty. The Tribunal has not applied its mind to this aspect. The assessee has been served with a notice that the appeal would be taken up on 7 January 2014 and an acknowledgement has been filed but no counsel has appeared. For the reasons indicated above, we are of the view that the order passed by the Tribunal is unsustainable and that the proceedings should be restored back to the file of the Tribunal for a fresh consideration. We may clarif ..... X X X X Extracts X X X X X X X X Extracts X X X X
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