Invocation of Extended period of Limitation in Revenue Neutrality situation - matter remitted for de novo consideration

PJ/Case Laws/2011-12/1473

Case: Commissioner of C. Ex. versus Kitply Industries Ltd.

Citation: 2011 (267) E.L.T. 289 (S.C.)

Issue:- Invocation of Extended period of limitation in case of revenue neutral issue – Tribunal set aside demand without considering properly facts and circumstances of the case – matter remitted for de-novo consideration.

Brief Facts:- The demand against the respondent-assesse was raised by invoking the extended period of limitation.

The Tribunal in the matter relying upon the decision of Larger Bench in the case of Jay Yushin Ltd v/s Commissioner of Central Excise, New Delhi [2000 (119) ELT 718] held that the finding of the Commissioner that Revenue neutrality is not established by the appellants is factually incorrect and, therefore, the order of the Commissioner is required to be set aside. The Tribunal held that since it is a case resulting in Revenue neutral situation, therefore, the extended period of limitation is not applicable and the entire demand is barred by limitation.

Revenue has filed appeal before the Supreme Court against the impugned decision.

Appellant’s Contention:- Revenue relied upon the following cases:

- Amco Batteries Ltd, Bangalore versus Collector of Central Excise, Bangalore [2003 (4) SCC 41]
- Commissioner of Central Excise, Mumbai versus Mahindra & Mahindra Ltd [2005 (10) SCC 251]
- Sharampal Satyapal versus CCCE, New Delhi [2005 (183) E.L.T. 241 (SC)]
- I.F.B. Industries Limited versus Commissioner of Central Excise, Goa [2005 (179 E.L.T. 487 (Tri. – Mumbai)]
- Kubo Combustion Efficiency Chem P. Ltd. versus Commissioner of Central Excise, Raigadh [2008 (225) E.L.T. 391 (Tri. – Mumbai)]

The decision in the case of Union of India versus Rajasthan Spinning and Weaving Mills [2009 (238) ELT 3 (S. C.), wherein also the principles and circumstances in which extended period of limitation would be applicable had been discussed.

Respondent’s Contention:- Assessee relied upon the judgemtn in the case of International Auto Ltd. versus Commissioner of Central Excise, Bihar [2005 (183) E.L.T. 239 (SC)] whereby the Supremee Court had set aside the judgment delivered by the Tribunal in C. A. Nos. 4086-87 of 2011. Reliance was also placed on Commissioner versus Essel Packaging Ltd [2006 (204) E.L.T. A45 (SC)].

Reasoning of Judgment:- The Supreme Court perused the judgment of the Larger Bench in Jay Yushin Ltd v/s Commissioner of Central Excise, New Delhi wherein the reference was answered as under:

“(a) Revenue neutrality being a question of fact, the same is to be established in the facts of each case and not merely by showing the availability of an alternate scheme;

(b)        Where the Scheme opted for by the assessee is found to have been misused (in contradistinction to mere deviation or failure to observe all the conditions) the existence of an alternate scheme would not be an acceptable defence;

(c)        With particular reference to Modvat scheme (which has occasioned this reference) it has to be shown that the Revenue neutral situation comes about in relation to the credit available to the assessee himself and not by way of availability of credit to the buyer of the assessee’s manufactured goods;

(d)        We express our opinion in favour of the view taken in the case of M/s. Internation Auto Products (P) Ltd. and endorse the proposition that once an assessee has chosen to pay duty, he has to take all the consequences of payment of duty.”

The Supreme Court noted that there are four areas laid down therein and that the decision was rendered by the Tribunal only by reference to clause (c) thereof, whereas clauses (a), (b) and (d) do not appear to have been taken notice of or considered by the Division Bench of the Tribunal in the impugned judgment and order.

The Supreme Court observed that the decision cited by the parties deal with the issues as to when and how the extended period of limitation could be said to be applicable are directly on the issue raised. It was concluded that there was no proper discussion of all the factual issues arising for consideration.

Therefore, the Supreme Court set aside the impugned judgment and remitted back the matter to the Tribunal for de novo consideration.

Decision:- Appeal disposed of accordingly.

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PJ/Case Laws/2011-12/1473

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