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M/s. Haldia Petrochemicals Ltd. Versus Commissioner of Central Excise, Haldia

2016 (5) TMI 657 - CESTAT KOLKATA

Invocation of extended period of limitation - Demand of interest raised after one year - time barred - Entire amount of Cenvat credit wrongly taken was suo moto paid as soon as mistake was pointed out themselves - Department argued that the period of 1(one) year, referred to in Sub-Section (1) of Section 11A, is to be counted from the date of intimation given by the Appellant regarding payment of amount by relying on the provisions of section 11A(2B) of Central Excise Act, 1944. - Held that: .....

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ent of duty. The Show Cause Notice was issued on 23.06.2010 which is within a period 1(one) year from the date of intimation (26.06.2009) given by the Appellant. Accordingly it is held that demand issued to the Appellant is not time barred and has been correctly confirmed by the First Appellate Authority. - Imposition of penalty - Appellant contended that maximum penalty under relevant Cenvat Credit Rules would not exceed ₹ 2,000/- as per amendment carried out on 11.05.2007 - Held tha .....

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e Commissioner(Appeal-I) of Central Excise(Appeals), Kolkata. 2. Shri Harakamal Chakraborty, GM(Finance) appeared on behalf of the Appellant and argued that Appellant mistakenly took Cenvat Credit with respect to export related services, totally amounting to ₹ 13,61,340.50(Rupees Thirteen Lakh Sixty One Thousand Three Hundred Forty and Fifty Paisa only), instead of claiming refund as per the procedure set out in Notification No.41/2007-ST dated 06.10.2007. That as soon as the mistake was p .....

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that for demanding interest also the Show Cause Notice was required to be issued within 1(one) year from the date of filing such return. He relied upon the case law of Commissioner of C.Ex., Surat-I vs. Neminath Fabrics Pvt.Ltd. [2010 (256) ELT 369(Guj.)] to argue that 'date of knowledge' has no mention in Section 11A of the Central Excise Act, 1944. It is further the case of the Appellant that the entire amount was suo motu paid and accordingly extended period cannot be invoked and dem .....

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e.f. 11.05.2007. That maximum penalty that could be imposed was thus only ₹ 2,000/-(Rupees Two Thousand only) and not ₹ 10,000/-(Rupees Ten Thousand only) as decided by the First Appellate Authority. 3. Shri S.S.Chatterjee, Supdt.(AR) appearing on behalf of the Revenue made the Bench go through the relevant provisions of Section 11A(2B) of the Central Excise Act, 1944 to argue that period of 1(one) year has to be calculated from the date of receipt of information from the Appellant a .....

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the case records. Appellant has not agitated the issue on merits regarding taking of Cenvat Credit. The entire amount was suo motu paid by the Appellant and an intimation to that effect was given to the Department by their letter dated 26.06.2009. Appellant is contesting the following two issues:- i) That demand of interest has been issued after a period of 1(one) year from the date of payment of confirmed demand and is time barred. ii) That maximum penalty imposable under Rule 15(3) of Cenvat .....

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penalty of ₹ 10,000/-(Rupees Ten Thousand only) imposed by the First Appellate Authority is not correct. No counter was put-forth by the Ld.AR to the legal fact. Accordingly Appeal filed by the Appellant to that extent is allowed and penalty of ₹ 10,000/-(Rupees Ten Thousand only) imposed by the First Appellate Authority is reduced to ₹ 2,000/-(Rupees Two Thousand only). 6. So far as time bar aspect regarding demand of interest is concerned, the case of the Appellant is that S .....

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excise has not been levied or paid or has been short-levied or short-paid or erroneously refunded, the person, chargeable with the duty, may pay the amount of duty [on the basis of his own ascertainment of such duty or on the basis of duty ascertained by a Central Excise Officer] before service of notice on him under sub-section (1) in respect of the duty, and inform the Central Excise Officer of such payment in writing, who, on receipt of such information shall not serve any notice under sub-se .....

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Central Excise Act, 1944 where any duty has not been levied or paid the person chargeable with duty may pay the amount of duty on the basis of his own ascertainment or on the basis of duty ascertained by a Central Excise Officer before issue of Show Cause Notice and inform the Central Excise Officer in writing regarding payment of such short-levy. That on receipt of such information no notice under Sub-section (1) of Section 11A is required to be issued. Proviso to Sub-section 11A(2B) also gives .....

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