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TMI Blog2014 (11) TMI 1049X X X X Extracts X X X X X X X X Extracts X X X X ..... ring the period in dispute. In this view of the matter, I hold that there is no suppression of facts, or fraud etc. made out against the appellant. Thus, I hold that the Commissioner (Appeals) has erred in holding that the extended period is invocable. I further hold that in the facts and circumstances, Section 11A is not invocable and the provision of extended period of limitation is also not invocable. Thus, the impugned order is set aside and the appeal is allowed with consequential relief, if any. - E/214/2010-Mum. - Final Order No. A/2054/2015-WZB/C-IV/SMB - Dated:- 14-11-2014 - Shri Anil Choudhary, Member (J) Shri V.S. Sejpal, Advocate, for the Appellant. Shri Ashutosh Nath, AC (AR), for the Respondent. ORDER Thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the appellant and availed Cenvat credit has been shown in column 10, which is the total of column 5 and the same batch in para 5A. Pursuant to EA2000 audit, sometime in the year 2005, the Revenue noticed that the appellant have wrongly taken credit of input i.e. AED (TTA) and utilized the same for payment of AED-GSI, which was not permissible. Accordingly, the Revenue felt that there was suppression on part of the appellant and issued show cause notice dated 13-1-2006 as to why not the differential duty i.e. Cenvat credit wrongly availed be not demanded along with interest and also penalty was proposed to be imposed under Section 11AC. The appellant contested the show cause notice on the ground of limitation that there being no act of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the case of Hindustan Heavy Chemicals v. Commissioner of Central Excise, Kolkata - 2009 (240) E.L.T. 14 (Cal.), wherein the assessee had availed Modvat credit on capital goods being Gas Cylinder as mentioned in the Notification No. 14/96-C.E. (N.T.), dated 23-7-1996, which was subsequently amended and altered, gas cylinder not to be capital goods. The appellant had availed credit of input duty and on such facts and circumstances, the Hon ble High Court held as follows: - 10. After analyzing the facts and the decision as cited before us in our considered opinion that the authority got ample opportunity to decide the question at the time of filing of the return by the assessee and at that point of time it was the duty of the authority to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ered opinion draw the benefit to the respondent for extension of the period of limitation as provided under the Statute. Therefore, in our considered opinion the appeal must be allowed, the question must be answered in affirmative in favour of the appellant. Therefore, we hold that no penalty can be imposed on the appellant excepting the duty in terms of the provision as we have specifically stated. (emphasis supplied) 3.2 The appellant further relies on the ruling of the Hon ble Karnataka High Court in the case of Commissioner of Central Excise, Bangalore v. MTR Foods Ltd. - 2012 (282) E.L.T. 196 (Kar.), wherein the assessee/manufacturer availed the benefit of Cenvat credit on input service of capital goods being prefabricated (con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It does not mean any omission. The act must be deliberate. In taxation, it can have only one meaning that the correct information was not disclosed deliberately to escape from payment of duty. Where facts are known to both the parties the omission by one to do what he might have done and not that he must have done, does not render it suppression. (emphasis supplied) Relying on the aforementioned rulings, he prays for allowing the appeal. 4. The learned AR, appearing for the Revenue, relies on the impugned order and further points out that in ER-1, the appellant have left the para 5A column 5 for giving the amount of AED-GSI blank and in this view of the matter, there is suppression on part of the appellant and accordingly prays f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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