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2021 (9) TMI 134 - AT - Central ExciseCENVAT Credit - inputs - Plates, channels, angels, beam and coil etc. which has been used in repair, maintenance of plant and machinery - extended period of limitation - suppression of facts or not - HELD THAT - In the present case the major demand is covered under extended period for the period 2003-2004 to 2007-2008. The show cause notice was issued on 23.06.2008. In the nature of this case, no suppression of fact can be alleged against the appellant. This is a common issue among various industries and there are various cases were decided by the Hon ble High Court of Chhattisgarh, Gujarat and Allahabad etc. before that the matter was referred to the Larger Bench in the case of VANDANA GLOBAL LTD. VERSUS CCE 2010 (4) TMI 133 - CESTAT, NEW DELHI (LB) . It is a settled law that when there is a dispute related to interpretation of law and the issue is common among various industries, the suppression cannot be alleged against the assessee. The demand for the extended period could not have been raised by the department, therefore, the demand for the extended period is set aside. Demand for normal period - HELD THAT - Since, against the judgment of Hon ble Chhattisgarh High Court in the case of M/S VANDANA GLOBAL LIMITED AND OTHERS VERSUS COMMISSIONER, CENTRAL EXCISE AND CUSTOMS, CENTRAL EXCISE 2018 (5) TMI 305 - CHHATTISGARH, HIGH COURT the matter is pending before the Hon ble Supreme Court, in the interest of justice, the matter should be decided after the judgment of Supreme Court. The matter remanded to the adjudicating authority to decide the matter afresh after the judgment of Hon ble Supreme Court - appeal allowed by way of remand.
Issues:
Entitlement to Cenvat Credit for various items used in repair and maintenance of plant and machinery; Sustainability of demand for the extended period due to suppression of fact. Analysis: The judgment in question revolves around the entitlement of the appellant to Cenvat Credit for items like Plates, channels, angels, beam, and coil used in the repair and maintenance of plant and machinery. The key issue is whether the appellant can claim credit for these items, considering the period involved predates the 2009 amendment to Rule 2 of the Cenvat Credit Rules. The appellant argued that since the period in question is before the amendment, the credit should be available, citing precedents where similar credits were allowed. Additionally, the appellant contended that the demand raised for the period 2003-2004 to 2007-2008, with a show cause notice issued in 2008, was not sustainable due to the absence of any suppression of fact. The appellant highlighted that the issue was not free from doubt and referenced the decision of the Hon'ble Chhattisgarh High Court in a related case, emphasizing that no suppression could be attributed to them. On the other hand, the Revenue representative argued that a judgment favoring the assessee in a similar case was issued by the Supreme Court, while a contrary judgment by the Chhattisgarh High Court was challenged in the Supreme Court. The Revenue suggested either keeping the appeal pending or remanding it to the adjudicating authority. Upon careful consideration, the Member (Judicial) found that the major demand fell within the extended period of 2003-2008, with the show cause notice issued in 2008. The Member agreed with the appellant's claim that no suppression of fact could be alleged, especially given the commonality of the issue across various industries and previous High Court decisions. It was noted that when there is an issue of law interpretation common among industries, suppression cannot be attributed to the assessee. Consequently, the demand for the extended period was set aside. Regarding the demand for the normal period, the matter was pending before the Supreme Court based on conflicting High Court judgments. In the interest of justice, the Member remanded the matter to the adjudicating authority for fresh consideration post the Supreme Court's judgment in the relevant cases. In conclusion, the judgment allowed the appeal by way of remand, directing a fresh decision by the adjudicating authority post the Supreme Court's rulings in the cases referred to.
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