Case Law Details
MIRC Electronics Ltd. Vs Commissioner of GST & Central Excise (CESTAT Mumbai)
The issue involved in this appeal is whether the appellant is justified in availing suo moto credit of excess duty paid in previous month on account of clearance of input effected under Rule 3(5) of Cenvat Credit Rules, 2004?
In this case procedure adopted by the appellant was well within the knowledge of the Revenue way back since the year 2011 and accordingly extended period of limitation is not invocable on the facts of the present case. Otherwise also it is settled legal principle as laid down by the Hon’ble Supreme Court in catena of decisions that something positive other than mere inaction or failure on the part of the manufacturer or producer or conscious or deliberate withholding of information when the manufacturer knew otherwise, is required before the assessee is saddled with any duty liability. Therefore, mere short payment of duty by the appellant is not sufficient in order to invoke the extended period.
Learned Chartered Accountant submits that the appellant was filing periodically ER-1 Returns, etc. therefore the said fact coupled with the fact that three show cause notices on identical issue have already been adjudicated in the year 2015, itself establishes that the procedure adopted by the appellant was within the knowledge of the Revenue. Therefore, no suppression can be attributed to the appellant.
A Co-ordinate Bench of the Tribunal in the matter of Sourav Ganguly v/s Union of India, 2016 (43) STR 482 (Cal.) has held that there has to be positive, conscious and deliberated action on the part of the assessee intended to evade tax and a clear fraudulent motive or an element of mens rea on part of the assessee has to be established before the department can take recourse to the extended period of limitation. The facts of the case clearly establish that there was no suppression on the part of the appellant and they have submitted all the documents/information as and when the same was asked by the department, starting from the year 2011 onwards.
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