9911796707
TMI Blog2013 (11) TMI 850X X X X Extracts X X X X X X X X Extracts X X X X ..... al Excise duty by the appellant on the mould which were billed to their clients - The findings recorded by both the lower authorities on limitation seems to be only the presumptions and not on the factual matrix as the first appellate authority has recorded that contention of the appellant is quite astute and pre-meditated one. Period of limitation for demand under section 11D - revenue relied upon the decision in the case of CCE, Ahmedabad-II vs. Inductotherm (I) Pvt. [2012 (12) TMI 856 - GUJARAT HIGH COURT] that period of limitation is not applicable under section 11D - held that:- As regards the submissions of learned Additional Commissioner (AR) that the show cause notice, even if it is indicating wrong Section or Rule, does not prec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at account. Coming to such a conclusion that appellant is not following the proper procedures, show cause notice was issued for demanding wrongly utilised cenvat credit from them under the provisions of Rule 14 of Cenvat Credit Rules, 2004 read with Section 11A of the Central Excise Act, 1944, interest thereof and also for imposition of penalties on the main appellant as well as Director of the appellant. The adjudicating authority, after following the due process of law confirmed the demands raised, appropriated the amount paid by the appellant, imposed interest and penalties on the main appellant as well as on the Director of the Company. Aggrieved by such an order, appellants preferred appeals before the first appellate authority. The fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... edit Rules, 2004 read with the provisions of Section 11A of Central Excise Act, 1944. It is his submission that the show cause notice was issue to the appellant on 25.11.2010 for the period February 2006 to August 2010. It is his submission that the entire demand is hit by limitation inasmuch, as the appellants were showing the clearances of moulds in their ER-1 returns religiously and no question was raised by the department. 4. Learned departmental representative on the other hand would submit that the judgment of the Hon'ble High Court of Gujarat in the case of Inductotherm (I) Pvt. Limited would squarely cover the issue in favour of the Revenue. It is his submission that mentioning of wrong provisions or Section in the show cause noti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nductotherm (I) Pvt. Limited, on merits, is in respect of the provisions of Section 11D which were invoked in the said show cause notice. In the case in hand, I find that the show cause notice specifically invokes the provisions of Rule 14 of the Cenvat Credit Rules, 2004 read with Section 11A of the Central Excise Act, 1944. The said Rule and the said Section if read harmoniously, talks about the recovery of an amount due from the assessee as Central Excise duty or for wrongly availed or utilised cenvat credit. In the case in hand, there is no dispute as to the fact that cenvat credit availed by the appellant is not disputed and there is also no dispute as to the fact that all the amounts which have been debited by the appellant are indica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der an impression that they were liable to pay duty on the same. There cannot be any dispute or motive attached to the said payment of Central Excise duty by the appellant on the mould which were billed to their clients. The findings recorded by both the lower authorities on limitation seems to be only the presumptions and not on the factual matrix as the first appellate authority has recorded that contention of the appellant is quite astute and pre-meditated one and the said findings do not find any support from the statements recorded of the Director and also is not referring the fact that appellant, in his monthly returns filed, specifically indicated that there was sale of moulds. The findings of the first appellate authority that any o ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
