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TMI Blog2013 (7) TMI 346X X X X Extracts X X X X X X X X Extracts X X X X ..... d of 6 months - the purpose of the beneficial provisions of Rule 6(7) ibid should not be defeated on the hypertechnical ground that the party’s application, though received by the department within the prescribed period, reached the Commissioner of Central Excise a day or two after such period – case remanded back to the Commissioner for adjudication – application decided in the favour of the assessee. - Appeal No.ST/2909/2011 - Final Order No. 569/2012 - Dated:- 9-8-2012 - Mr. P.G. Chacko and Mr. M. Veeraiyan, JJ. For the Appellant: Mr. Rajesh Kumar, Chartered Accountant For the Respondent: Mr. Ganesh Haavanur, Addl. Commissioner(AR) JUDGEMENT Per: P.G. Chacko; This application filed by the appellant seeks waiver a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e extended period of limitation prescribed under the proviso to Section 73(1) of the Act was invoked on the alleged ground that the appellant had suppressed the factum of having erroneously availed and utilized CENVAT credit, with intention to evade payment of service tax. In their reply to the show-cause notice, the party, inter alia, referred to sub-rule 7 of Rule 6 of the CCR and claimed the benefit of this sub-rule which had been introduced by the Finance Act, 2010 with retrospective effect from 10/09/2004. They submitted that they had already computed the proportionate amount of service tax credit attributable to the exempted final products and had paid the same with interest @ 24% and, therefore, the proposals in the show-cause notice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the condition has been fulfilled. Thus, in conditional provision/rule, the provision/rule is there but its taking effect is made to depend upon determination of some fact or condition by the competent authority. 50. I find from the records placed before me that, the Noticee has filed application on 09.11.2010 (the official seal is dated: 09.11.2010) the noticee has mentioned the date as 02.11.2010 on the application enclosing the chartered accountants certificate Dated: 03.11.2010; the Finance Bill 2010 has received the President s assent on 08.05.2010. The Noticee should have filed the application on 07.11.2010, as 07.11.2010 was Sunday they should have filed on next working day i.e. 08.11.2010, as the Noticee has filed the application ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rom the Commissionerates of Central Excise and Service Tax and to confirm the date of filing of the application referred to in ground 4 ibid. The matter was adjourned to 09/08/2012 for such records and report. 5. Today the learned Commissioner (AR) produces copies of the correspondence between him and the two Commissionerates. Another document produced by him is a copy of letter dt. 30/07/2012 of the Administrative Officer (Admn.), Service Tax Commissionerate, Bangalore to the Additional Commissioner(Audit) of the same Commissionerate. This letter reads thus: With reference to the captioned subject, this is to inform that the letter addressed to the Commissioner of Service Tax, dated 02nd November 2010 from M/s. CAE India Private Limite ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duty and also other final products which are exempted goods, may pay an amount equivalent to CENVAT credit attributable to the inputs or input services used in, or in relation to the manufacture of, exempted goods before or after the clearance of such goods: Provided that the manufacturer shall pay interest at the rate of twenty-four per cent, per annum from the due date till the date of payment of the said amount. Explanation, For the purpose of this sub-rule, due date means the 5th day of the month following the month in which goods have been cleared from the factory. 7. As rightly noted by the adjudicating authority in para-48 of the impugned order, a person seeking the benefit of the above sub-rule (which has retrospective effect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8. As the above benefit was denied to the party solely on the ground of delay of application despite the absence of any delay, we are constrained to set aside the impugned order and remand the case to the Commissioner for de novo adjudication of the dispute. Accordingly, the impugned order is set aside and this appeal is allowed by way of remand with a request to the Commissioner to consider on merits the claim of the assessee for the benefit of sub-rule (7) of Rule 6 of the CCR, 2004 and pass a speaking order on all relevant issues in accordance with law after giving the party a reasonable opportunity of being heard. 9. The stay application also stands disposed of. (Operative part of this order was pronounced on conclusion of the hea ..... X X X X Extracts X X X X X X X X Extracts X X X X
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