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TMI Blog2015 (3) TMI 1092X X X X Extracts X X X X X X X X Extracts X X X X ..... 85. This factual matrix has been appreciated by the first appellate authority in his Order-in-Appeal when he set aside the penalties imposed by the Adjudicating Authority under the provisions of Rule 15 of the CENVAT Credit Rules, 2004 read with Section 11AC of the Central Excise Act, 1944 - If there is no clandestine removal, the question of invoking the extended period and confirming the said demand cannot arise - demand confirmed against the appellant is barred by limitation and liable to be set aside - Decided in favour of assessee. - Appeal No. E/440/10- Mum - - - Dated:- 18-3-2015 - Mr. M.V. Ravindran, Member (Judicial) For the Petitioner : Shri V.B. Gaikwad, Advocate For the Respondent : Shri V.K. Shastri, AC (AR) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de the penalties imposed by the Adjudicating Authority. He is relying on the decision of the Tribunal in National Flask Ind. Ltd. 2009 (90) RLT 808 and Siyaram Metal P. Ltd. 2009 (90) RLT 823 for the proposition that once penalty has been set aside on the ground that there was no clandestine removal, the demand also automatically fails. 6. Ld. Departmental Representative, on the other hand, submits that the appellant never forwarded the invoice along with returns and the lower authorities could not have imagined that the capital goods are removed as such. It is his submission that when this error was pointed out at the time of audit, the appellant himself reversed the Cenvat credit. Hence the extended period invoked by the show-cause not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing is undisputed by the revenue. If there is no clandestine removal, the question of invoking the extended period and confirming the said demand cannot arise. 9. I find that the ratio of the judgment of the Tribunal in National Flask Ind. Ltd. (supra) would be applicable in this case. In our considered view, I find that the ratio of the judgment of the Tribunal in CCE vs. Digvijay Polytex P. Ltd. 2009 (238) ELT 447 would be more appropriate. I reproduce the said ratio. However, the show-cause notice issued proposing demand for differential duty had been issued in February 2006 whereas the short reversal of credit/short payment of duty had occurred on removal of capital goods in September, 2004. In view of the fact that the responde ..... X X X X Extracts X X X X X X X X Extracts X X X X
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