C.N.B. Nair, Member (T)
1. The dispute in this appeal relates to availment of Modvat credit in respect of inputs. The impugned order has disallowed the Modvat credit amount of over Rs. 2.5 crores and have imposed a penalty of Rs. 10 lacs on the appellant. The entire demand falls outside the normal period of six months for issue of show cause notice.
2. Learned Counsel appearing for the appellant has submitted that the credits had been rightly availed of inasmuch as there is no dispute that the inputs had been used in the manufacture of dutiable final products. The learned Counsel pointed out that the objection raised is of technical nature inasmuch as it has been held that inputs had not been declared, final pro-ductwise, the inputs being (1) C-4 Raffinate (2) Law Aromatic Neptha (3) LSHS and (4) C-5 Reformate.
3. The learned Counsel for the appellants also submitted that the entire demand has to be held as time barred inasmuch as full facts about the availment of Modvat credit for the purpose of payment of duty on final goods was in the knowledge of Central Excise authorities and all the clearances of final products were under prescribed documents (invoice). Mostly returns showing such utilization of credits had also been filed. Learned Counsel pointed out that mere non-declaration of an input cannot be held as a case of suppression of facts with intent to evade payment of duty inasmuch as there is no evasion of duty resulting from non-declaration of an input. Instead, the appellant only would suffer by way of loss of credit. In this connection he referred the decisions of this Tribunal in the case of CCE v. Asia Insulated Wires (P) Ltd. [1992 (62) E.L.T. 812 (T) = 1993 (45) ECR 125]. He also referred to the following decisions of this Tribunal :-
[2002 (144) E.L.T. 561 (T) – 2000 (48) RLT 117] JBM Tools Ltd. and Ors. v. CCE
1992 (62) E.L.T. 547, S. Subramanyam & Co. v. CCE
1993 (64) E.L.T. 339, Vikrant Televisions (I) Pvt. Ltd. v. CCE
2002 (103) ECR 121, HPCL v. CCE, Mumbai-II and
[2000 (121) E.L.T. 247 (T-LB) = 2000 (40) RLT 575], Kamakhya Steels (P) Ltd.
The learned Counsel also pointed out that the duty demand raised in the impugned order is contrary to the Circular No. 441/7/99-CX. dated 23-2-99 of the Board inasmuch as the Board had advised that credit should not be denied for technical breaches of the Modvat rules.
4. The finding in the impugned order “is that since the assessee manufacture number of items and they have declared number of inputs, it is very difficult to say from the duty paying document that particular input received by the assessee has been declared or otherwise”. Resort to extended period has been justified holding that non-declaration of Modvat credit is nothing but a suppression of facts when the credit has been taken on such non-declared inputs. It is seen that the appellants had declared the inputs in question. They had been using these inputs in the manufacture of final products and paying duty on the final products including from the Modvat credit availed of on the inputs. They were also filing periodic returns. Thus, full facts about the inputs on which credit had been availed of were made known to the Central Excise authorities through the appellants’ statutory records and returns. A charge of suppression of facts is not maintainable against the assessee in these circumstances. We accept the appellant’s submission that this is not a case involving suppression of facts, justifying raising duty demand by resort to extended period as provided in proviso to Section 11A of Central Excise Act. The demand and penalty imposed in the impugned order are set aside on the ground that they are raised beyond the permissible time
limit and the appeal is allowed.