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TMI Blog2010 (6) TMI 228X X X X Extracts X X X X X X X X Extracts X X X X ..... though condition mentioned under Notification No. 39/2001-CE dated 31.07.2001 for utilization of Cenvat Credit of payment of service tax were not complied ? (2) Whether the Tribunal committed an error in treating the show cause notice as barred under Section 11A of Central Excise Act, 1944 though the order of jurisdictional Assistant Commissioner was dated 30.6.2006 and Show Cause Notice was issued on 23.8.2006, i.e. within prescribed period of limitation of one year ? 2. The respondent assessee, a manufacturer of biscuits and corrugated boxes has a factory in Kutch district and is availing the benefit of Notification No.39/2001-CE dated 31.7.2001. Under the Notification a manufacturer is entitled to the benefit of refund of amount paid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessee realized the error for having utilized the Cenvat credit for payment of service tax and hence, on 4.4.2006 deposited the entire amount of service tax to the tune of Rs.21,63,090/- with Rs.43,243/- towards Education Cess for the said period and sent intimation to the department. 4. On 23.8.2006 six Show Cause Notices were issued on the ground that self credit of Rs.20,19,827/- for the aforesaid period was irregular since Cenvat Credit to the said extent was not fully utilized for payment of excise duty in terms of the Notification. After adjudication demand has been raised for the said amount which has been challenged by way of Appeal before the Tribunal. 5. The Tribunal by a majority opinion has come to the conclusion that the dem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t. 7. It is also an accepted fact that in so far as payment of Central Excise Duty, even in terms of the Notification, has been made and there is no default. Therefore, it is incorrect to state that there is breach of any condition so far as Notification is concerned. It is not as if the amount which was payable towards Central Excise Duty has been diverted towards payment of service tax. At the cost of repetition it is required to be recorded that a far larger sum was available in the cenvat credit account, the amount of service tax which was paid was Rs.20,19,827/- against total credit in the cenvat credit account to the tune of Rs.2.7 crores. Thus no prejudice is shown to have been caused to the revenue in any manner whatsoever. 8. In ..... X X X X Extracts X X X X X X X X Extracts X X X X
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