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TMI Blog2013 (10) TMI 1298X X X X Extracts X X X X X X X X Extracts X X X X ..... eld as time-barred. - Decided in favour of assessee. X X X X Extracts X X X X X X X X Extracts X X X X ..... o the adjudicating authority with the following observations :- "6. After going through the submissions made by both sides, we find that the benefit of exemption in terms of Notification No. 30/2004 has not been extended to the appellant mainly on two grounds. First that the credit availed on the input used in manufacture of such exempted goods was reversed subsequently and second on the ground that such reversal of credit is not equivalent to the credit availed. 7. On both above counts, the learned advocate submits that subsequent reversal of the credit stand upheld by Hon'ble High Court of Gujarat in the case of CCE v. Ashima Dyecot Ltd., 2008 (232) E.L.T. 580 (Guj.) and in the case of CCE Ahmedabad v. Maize Products, 2008 (89) R.L.T. 211 (Guj.). In the later case, reversal of credit even at the appeal stage has been held in accordance with law. As regards quantum of reversal, he submits that the appellants are in a position to demonstrate before Commissioner that the quantum of credit reversed by them was equivalent to the credit taken by them on the said input. 8. In view of the above, we allow all the stay petitions unconditionally and set aside the impugned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... udicating authority to give a copy of report of Assistant Commissioner to all these appellants and decide the issue after getting representation/defence against said report from the assessees. Needless to say that the adjudicating authority will follow the principles of natural justice before arriving at conclusion. We also make it clear that the appellants will cooperate the adjudicating authority as and when the adjudicating authority calls them for personal hearing to decide the issue. 9. All the appeals are allowed by way of remand to adjudicating authority, keeping all the issues open. Since the issue is being remanded second time, we would like that the adjudicating authority will hear and dispose the matter as early as possible." 3. During the adjudicating proceedings under the second remand copies of Assistant Commissioner's reports were given to the appellants. Appellants wanted to know the basis on which the alleged short reversal of Cenvat credit was worked out by Revenue. The basis was not provided by the adjudicating authority and it was held that ₹ 15,89,173/-, with respect to Appellant No. 1, ₹ 8,15,246/- with respect to Appellant No. 2 and &# ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Mfg. Co. Ltd. [2007 (215) E.L.T. (S.C.)] (d) Chandrapur Magnet Wires Pvt. Ltd. v. CCE, Nagpur [1996 (81) E.L.T. 3 (S.C.)] (e) Bhor Industries v. UOI [2011 (266) E.L.T. 444 (Bom.)] (f) Goel Airshrink (India) Ltd. v. CC (Export), Mumbai [2002 (148) E.L.T. 562 (Tri.-Mum.)] (g) Hindustan Polymers Co. Ltd. v. CCE, Guntur [1999 (106) E.L.T. 12 (S.C.)]. 5. Shri K. Sivakumar, (AR) appearing on behalf of the Revenue argued that reversal of pro rata Cenvat credit was not regularly made at the end of the month by the appellants and in some cases even made after 2 to 4 months. Secondly, he argued that appellants have not reversed exact Cenvat credit as required. Written submissions dated 20-8-2013, were filed by the Revenue during arguments on the basis of ER-1 for the relevant period, indicating that the Cenvat credit required to be reversed. On time bar, it was argued by ld. AR that only on department's query, appellants informed that debit entries made in RG-23 Part II also included Cenvat credit reversed with respect to exempted goods and hence due to this suppression extended period as per proviso to Section 11A is correctly invoked along with Section 11AC penalty. 5. As ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , Mumbai-I v. Bombay Dyeing Ltd. [2007 (215) E.L.T. 3 (S.C.)], also relied upon by the appellant, Cenvat credit reversed later is sufficient for exemption under Notification No. 30/2004-C.E., dated 9-7-2004. Accordingly, the issue of reversal of Cenvat credit for the entitlement of Notification No. 30/2004-C.E. was settled at rest in view of the law laid down by Gujarat High Court and only verification and adjustment of Cenvat credit reversal was required as per Para 7 of the judgment in the case of CCE, Ahmedabad v. Maize Products [2008 (89) R.L.T. 211 (Guj.) = 2009 (234) E.L.T. 431 (Guj.)]. 6.2 Thus, the only issue required to be decided in first remand proceedings was appropriate quantum of credit reversal by the appellants. Adjudicating authority relied upon reports of the jurisdictional Assistant Commissioner, copies of which were desired by the appellants. The same were not given to the appellants and demands confirmed against the appellants by the adjudicating authority. Vide the Order dated 21-5-2012, in the second remand, this Bench has to direct the adjudicating authority to give copy of the said report of the Assistant Commissioner to the appellants to defend the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me barred as the required debit entries were made in their periodical ER-1 returns filed with the Department. It is observed from the facts narrated in Paras 3 & 4 of the show cause notices issued to the appellants that fact of debiting Cenvat credit account in excess of duty payable on dutiable textile was known to the Department. Only on the basis of ER-1 returns filed by the appellants the jurisdictional field formations could know that Cenvat credit with respect to inputs Dyes & Chemicals used in relation to exempted goods was reversed. The quantum of reversal of Cenvat credit was never questioned by the Revenue. Once appellants declared the quantum of Cenvat credit reversed on the query of field formations, it cannot be held that there was any suppression on the part of the appellants with an intention to evade duty attracting extended period under proviso to Section 11A of the Central Excise Act, 1944. Accordingly, extended period of demand was not invokable in the present proceedings and show cause notices have also to be held as time-barred. 8. Based on the above observations, appeals of the appellants are allowed on merits as well as on time bar. (Pronounced in Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X
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