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TMI Blog2011 (2) TMI 790X X X X Extracts X X X X X X X X Extracts X X X X ..... ds used in or in relation to manufacture of final products. Their factory was visited by the Jurisdictional Central Excise officers on 10/3/05 and on checking the records, it was found that input purchase invoices on the basis which they had taken Cenvat credit, were bearing endorsements on their back regarding short receipt of the material. The Cenvat credit involved on the short received material was Rs. 2,59,626/-. The Cenvat credit was debited on 10/3/05 itself in RG-23A Pt. II account. Subsequently, the appellant vide their letter dated 14/5/05 admitting the shortage and reconfirming their mistake of taking Cenvat credit in respect of the goods short received, sought immunity from the issue of show cause notice and penal proceedings in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the invoices, that the same had been made and signed under the pressure of the Departmental Officers, that since the debit had been made under pressure and actually there was no shortage, the appellant on 24/5/05 took the credit of the amount earlier debited, again by recredit in the RG-23A Pt. II account, that an intimation about this recredit was given to the Department and beside this, the details of this recredit were also reflected in the ER-1 return for the month of May 2005 filed in June 2005, that as such, there was no malafide or suppression of relevant information on the part of the appellant and hence even without going into the merits of the case, the Cenvat credit demand raised vide show cause notice dated 6/11/2007 is time ba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ersed under pressure and similarly the plea of time bar on the ground that the details about the recredit had been reflected in the ER-1 return for the month of May 2005 had never been taken in the course of proceedings before the Assistant Commissioner and the Commissioner (Appeals), that since the plea of limitation had not been taken the course of proceedings before the original Adjudicating Authority and before the Commissioner (Appeals), the same cannot taken at this stage and that since the appellant had accepted the short receipt of the inputs, had voluntarily debited this amount on 10/3/05 and subsequently sought immunity from the issue of show cause notice and imposition of penalty in terms of Section 11 (2B) of Central Excise Act, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... show cause notice is time barred, I find that this plea was neither taken before the original Adjudicating Authority nor the same was made before the Commissioner (Appeals). I also find that while as per the format of ER-1 return, an assessee, in the ER-1 return, is required to give consolidated information about the opening balance of the credit at the beginning of the month, the credit taken on various types of inputs, the credit utilized during the month and closing balance of the Cenvat credit at the end of the month, there is no column for either invoice details or the details of the credit entries which the appellant claim to have furnished in ER-1 return. The question of limitation is a mixed question of fact and law and if this plea ..... X X X X Extracts X X X X X X X X Extracts X X X X
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