- (1.) THE appeal by the Revenue arises from a decision of the Customs, Excise and Service Tax Appellate Tribunal, New Delhi, dated March 22, 2013. The Revenue has formulated the following substantial questions of law: (i) Whether on the facts and in the circumstances of the case the CESTAT was justified in holding that although on merits the respondent shall not succeed following the apex court's decision in the case of CCE v. Sunwin Technosolution P. Ltd. reported in : [2010] 5 GSTR 242 (SC) : [2011] 21 STR 97 (SC), the appeal filed by the respondent only succeeds only on the point of time bar and not on merit? (ii) Whether on the facts and in the circumstances of the case the CESTAT was justified in holding that the respondent ought not have been denied the benefit 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?
(2.) THE assessee is registered with the Central Excise Department for manufacture of automobile parts (articles of plastic) falling under Chapter subheading 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 passbook (DEPB). A notice to show cause was issued to the assessee on December 9, 2005 invoking the extended period of limitation under the proviso to section 11A(1) of the Central Excise Act, 1944. The Additional Commissioner, Central Excise, Noida confirmed the duty demand and held, on the basis of the following findings, that the extended period of limitation had been validly invoked: I find that Cenvat credit was taken on the strength of the bills of entry under discussion in the months of March 12 to April 7. The ER -1 returns and Cenvat credit returns submitted by the party for these months do not reflect that the additional customs duty (CVD) was paid through DEPB adjustments nor these returns show that bills of entry were submitted to the Department. The self -assessment memorandum Sl. No. 7(a) of the aforesaid ER -1 returns submitted by the party declares that the information given in the return is true, correct and complete in every respect whereas material information relating to taking of Cenvat credit on the strength of bills of entry on which additional duty of customs (CVD) has been paid through DEPB adjustment has not been incorporated in either of the aforesaid returns. The party had also not submitted the aforementioned bills of entries to the Department so that the Department could have knowledge to material information contained therein. Thus the material information relevant for scrutiny of above returns were suppressed and concealed from the Department. The party had deliberately concealed the facts with the Department with intent 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/utilised the Cenvat Credit wrongly. Hence extended period under section 11(A) of the Central Excise Act, 1944 is invokable in the instant case for recovery of inadmissible credit availed of by them.
(3.) A penalty in the like amount of Rs. 42,10,670 was imposed under section 11AC.;