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TMI Blog2010 (11) TMI 835X X X X Extracts X X X X X X X X Extracts X X X X ..... e officers were always free to inquire from the respondent about details of the same and satisfy themselves about its correctness - Decided in favor of the assessee - ST/303/2010-SM(BR) - 1473/2010-SM(BR)(PB) - Dated:- 23-11-2010 - Shri Rakesh Kumar, J. REPRESENTED BY : Shri S.R. Meena, SDR, for the Appellant. Shri Sourabh Yadav, Advocate, for the Respondent. [Order]. The facts leading to filing of this appeal by the Department are, in brief, as under :- 1.1 The respondent are manufacturers of Bearing Components chargeable to central excise duty under Chapter 84 of the First Schedule to the Central Excise Tariff Act, 1985. They availed Cenvat credit of Central Excise duly paid on inputs and of service tax paid on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 11AC of the Central Excise Act, 1944. On appeal to the Commissioner (Appeals), the Commissioner (Appeals) while upholding the Assistant Commissioner order on merits, held that show cause notice is time barred and set aside the Asstt. Commissioner s order confirming the Cenvat credit demand and imposing penalty, on the ground of limitation. The Commissioner (Appeals) was of the view that there is no evidence on record indicating that the respondent had suppressed the relevant information from the Department or that they have wrongly availed Cenvat credit with intent to evade payment of duty. It is against this order of the Commissioner (Appeals) that the Department has filed this appeal before the Tribunal. 2. Shri S.R. Meena, ld. SDR, pl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... E.L.T. 154 (Tribunal-Delhi) and also the judgment of the Tribunal in the case of M/s. Polycone Paper Ltd. v. CCE, Mumbai-III reported in 2008 (224) E.L.T. 274 (Tribunal-Mumbai). He pleaded that in the case of M/s. B.B. Shah (P) Ltd. (supra) while the appellants were required to file declaration of the value of the inputs in case of goods in process inclusive of processing charges and their declaration did not indicate that the value declared by them was inclusive of the processing charges and in these circumstances, the Tribunal held that the appellants are guilty of suppressing the relevant information from the Department with intent to evade the duty by taking higher Cenvat credit, that in the case of Polycone Paper Ltd. (supra), the Tri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oducts v. CCE reported in 1989 (43) E.L.T. 195 (S.C.), Collector of Central Excise v. HMM Limited reported in 1995 (76) E.L.T. 497 (S.C.) and Collector of Central Excise, Bangalore v. Karnataka Agro Chemicals reported in 2008 (227) E.L.T. 12 (S.C.), wherein it has been held that for invoking the extended period under proviso to Section 11A(1) of the Central Excise Act, some positive evidence showing deliberate suppression of relevant facts, wilful misstatement or contravention of the provisions of the Central Excise Act, 1944 or of the Rules made thereunder with intention to evade payment of duty is required and mere failure or negligence of the manufacturer to take out licence or pay duty where there was scope for doubt that goods were not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Central Excise , and for the words Six months , the words five years were substituted . 7. As per the provisions of Rule 15(2) of the Cenvat Credit Rules, 2002 in a case where the Cenvat credit has been taken and utilised wrongly by the reason of fraud, collusion, wilful mis-statement, suppression of facts and contravention of any of the provisions of the Central Excise Act, 1994 and of the Rules made thereunder with intention to evade the payment of duty, the manufacturer shall be liable to pay penalty in terms of the provisions of Section 11AC of the Excise Act. 8. Section 11AC of the Central Excise Act provides that where any duty of excise has not been levied or short levied or short paid Ist proviso to erroneously refunded, by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... closing the invoices or giving the details of such credit or neither such details were given nor the invoices were enclosed. However, once ER-I Return is filed, even though it is filed under self-assessment system, the officers are supposed to scrutinize the same. Just because the respondent had taken Cenvat credit in respect of certain input services, which according to the Department was not admissible to them, it cannot be concluded that the credit had been taken knowing very well that the same was not admissible, unless there is some evidence in this regard. Moreover when the quantum of service tax credit availed had been disclosed, the officers were always free to inquire from the respondent about details of the same and satisfy themse ..... X X X X Extracts X X X X X X X X Extracts X X X X
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