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TMI Blog2008 (3) TMI 593X X X X Extracts X X X X X X X X Extracts X X X X ..... o evade payment of duty. So, the payment of duty for the extended period of limitation cannot be invoked - demand set aside on the ground of limitation - appeal allowed - decided in favor of appellant. - Shri P.K. Das, J. REPRESENTED BY : Shri Bipin Garg, Advocate, for the Appellant. Shri S. Gautam, DR, for the Respondent. [Order]. After hearing both the sides and on perusal of the record, I find that the issue involved in this case is in narrow compass and therefore, after granting the stay applications, the appeals are being taken up for hearing. 2. The issue involved in this case is as to whether the Cenvat credit is admissible on Bill of Entry wherein duty has been paid through DEPB Scheme. The learned Advocate on behalf of the appell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hearing both the sides and on perusal of the record, it is seen from the order of the Commissioner (Appeals) that the officers of Internal Audit party while auditing the record, noticed that the appellants availed Cenvat credit against the Bill of Entry No. 353060 dated 15th April, 2004 wherein the Additional Customs Duty (CVD) was paid through DEPB Scheme. It has been alleged that as per para 4.3 of Exim Policy, the benefit of Cenvat credit is not admissible paid through DEPB. It has also been alleged that the Bill of Entry was endorsed by the importer without having registration of Central Excise as dealer. It has further been alleged that the fact of having Cenvat credit for inadmissible documents was never disclosed to the Department. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The Hon ble Supreme Court in the case of Gopal Zarda Udyog (Supra) held that mere failure or negligence on the part of manufacturer either not to take out licence or not to pay duty in cases where there is scope for doubt, does not attract extended period of limitation. 7. In the present case, the Tribunal in the case of Polyhose India Pvt. Ltd. v. Commissioner reported in 2003 (152) E.L.T. 361 (Tri.) passed by the Single Member Bench took the view that Modvat credit can be taken on the CVD by debit in the DEPB. It is noted that the said decision was later followed by the Division Bench of the Tribunal in the case of Spic Ltd. v. CCE, Chennai reported in 2004 (61) RLT 671 (Tri.). The matter was referred to the Larger Bench. In the case of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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