4 IN THE HIGH COURT OF JUDICATURE AT BILASPUR (CHHATTISGARHl TAX CASE N0. APPELLANT: 15 OF 2011 Union of India, through Commissioner, Central Excise & Custom, Central Excise Bhawan, Dhamtari Road, Tikarapara, Raipur, C.G. Versus .<l>,\\\^ <^'~ RESPONDENT:.^:--^ ^y ^'^ ^" ^ ':^<^v1^' ,^' M/s. Balaji Loha Pvt. Ltd., ^^' .^A^ urla Industrial Complex, -^ ^ ^!?Q Urta, Raipur (C.G.) t^^l^v Urta, Raipur(C.G.) ' T^'"1 APPEAL iTNDER SECTION 35 G OF THE CENTRAL EXCISE ACT, 1944 READ WITH SECTION 83 OF THE FINANCE ACT, 1994 I! ;•'..:-'r-::''1'... HIGH COmT OF CHHATTISGARH AT BILASPUR APPELLANT KESPONDENT TAX CASENO: 19 of2011 Umonoflndia. VERSUS M/s.B^ajiLohaPvt.Ltd. (^& APPEAL UNDER SECTION 35G OF THE CENTRAL EXCISE A<2T. 1944 READ WFTH SECTION 83 OF THE FINANGE ACT. 1994. Coram: Hon'ble Shr^atish K. Agnihotri, & Hpn'ble iShri Radhe Shyam Sharma, JJ« •:^ Present: ShriBhishmaKmger^StandmgCounselfbrfheAppeUa^^ JUDGMENT I. 2. (Passedon 02nd day QfAugust, 2011) Heardonadmission. Challenge in this appeal is to the Final OrderNo.1150/2010 - SM(BR) dated ^l .10.2010, passed by the Customs, Excise & , . ,X Ser^ice Tax lAppellate Tribunal (for short 'the Tribunal"), whereby the appeal filed by the appellant/Revenue has been dismissed. Facts of the case, m brief, are that the books and accou^^^ maintained by the respondent was audited by the Audit Team pf the Gentral Excise Headquarters, Raipur wherein it was observed that the 'respondent had ayalled Cenvat credit pn MS angle, MS channej aad MS plates ^tc. The audit took place afc the premises of ' the respondenfs fbr the period April, 2004 to November, 2006 on 14.12.2006 and the same was continued upfo 16.12.2006. Thereafiter.on 04.03.2008, ashowcaiisenoticewa^ respondents jdenying Cenvat credit on the above said items as the ^mssm m same was not covered as inputs as per Rule 2(k) of the Cenvat Credit Rules, 2004. Duty demand was confirmed alongwlth interest and penalties. The respondent filed an appeal before Uie Commissioi^r (Appeals) who set: aside fhe demand faoldmg the ^1' same t6 l3e| barred by limitation vide orde^ ^ (Annexure A/4), A^ainst the sm appeal befbre the Tribunal which was also dismissed confirming theorderpassedbytiieCommissiQner(Appeats),^^^^^^^^^^^^ 3. Shri Kinger,! learned counsel a^ that the Cenvat credit availed by the respondent was not admissible ";; astheifems^as^forestated camiot.be considered as inputs neither ^ as capital goods 111 terms of Rule 2(k) of the Cenvat Credif Ryles, 2004. The respondent ha§ suppressed the maferial fact with the v Revenue for availing of the Cenvat Credit on duty paid on pNe, f joist and angles aad on the invoices. The extended geriod of limitation w^ ^being invoked for disallowing^ecpvery pf the wrongly^ availed Cenvat ^ further submits that the tegal^^^^^^^^^^^ proyision for issyance pf a show cause riofice in a case of 1-!11",/1':''':^ 1,1';-.:-^.1 , .••:'.^ •1^:^'.1 •..::<;.,-.1-;.';'..^-^- suppression |of fact is fiye years and therefbre, tfie show cause iioticewaswithinlimitation. 4. From perusal ofthe impugned order, it is evident that the Tribunal was of the yiew that the altegation of siippression pf facfs pn fhe ;part of the respQndent/assesse& was not fbund proved and it is a question pf pure finding wliich has not been challenged being ,(':::'I;-.7'^'" ^- iT ,f::'1'.,'"':':''': per^erse, '^":'. ^^^,. y^s&i }'^":<: •:;.lt.. ";•;.;: ,f;:."^'':':'''. •^^^^^^^^^^^^^^^^^ 5. Proviso to section 1 IA of the Central Excise Act, 1994 provides fbr issue of notice within one year from the relevant date. In case where aiiy duty of excise has nof been leyied or paid or has been short-Ievied or short-paid or erroneously refunded by reason pf fraud, eollusion or any willful mis-statement 6r suppressiori of facts, theperiod ofnofice shall be five years^^ come witKin the ambit of prQviso to section 11A as audit by the appellaiitwasconductedon 16.12.2006 a^^ cause noticei was issued on 04.03.2008, afteraperiodofabo^ months i.e. fceyond pne yearlinutation. Thus, the casewa&rightly dismissed on the ground fhaf^^^^^^ show cause notice within the prcscribed period of one year. 6. In the above facts and circumstances, no subs^ law arises in this appeal for considet'ation o^ Sectioii 35-(j of the Gentral Excise Act 1944, as fhe authorifies ,4 ^ below have rightly held that there is no suppression of facf by the respondent, moreover, fheshowcazisenotice,issyedpn 04.03.2 ' (AnnexyreA^)^^w^ 7. For the reasons stated hereinahove, the instant appeal is dismissed and the order uiider appeal is affirmed. S.Thereshallbenoorderastocosts/^ Sd/- Satish K. Agnihotri Judge Sd/- R.S. Sharma Judge ••/" '^ •^/."'^ <Amit