9911796707
TMI Blog2009 (7) TMI 389X X X X Extracts X X X X X X X X Extracts X X X X ..... the demand having been raised in 2007 when the goods were admittedly received back in November, 2002 and returns were filed with the department is barred by limitation. - When the appellant has intimated the Revenue about receipt of the goods and the fact of availing credit of entire duty, they cannot be held guilty of any suppression with mala fide intent even though BED and SED were not shown separately as credit. – Invoices having been filed along with intimation, it was very clear that the credit of two types of duties have been availed by the appellant. In such a scenario, I fully agree with the appellant that there cannot be any mala fide intent to avail wrong credit. The demand having been raised beyond the normal period of limitatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r authorities have denied the credit of SED on the ground that when the goods were returned in November, 2002, they were not subject to levy of SED. 4. The above reasoning adopted by the lower authorities stand assailed by the appellant on the ground that such credit of duty originally paid was availed by them in terms of provisions of Rule 16 of CER, 2001. The said rule allows an assessee to avail the credit of duty paid at the time of removal thereafter. Inasmuch as the SED was admittedly paid at the time of removal, the appellants are entitled to avail the credit of the same on return of the goods, even if at the time of return, no SED was leviable on the goods. Learned advocate has also assailed the impugned order on the ground of li ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ear from the above, the duty paid at the time of clearance is available as credit at the time of return of the goods to the factory and not the duty payable at the time of receipt of the goods. The lower authorities have denied the credit on the ground that the duty payable on the disputed goods at the time when they were received back by the appellant was only BED and not SED was leviable. However, as already observed, it is not duty "payable" but the duty "paid", which is available as credit to the assessee. Admittedly, the duty paid at the time of clearance of the goods was BED as also SED. Even if learned SDR's contention that the goods were cleared by the buyer under the cover of their own invoices is accepted, even then undisputedly, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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