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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 ..... ook registration w.e.f. 9-5-2003 and started complying with the provisions of Rules by filing regular return and paying the duty. After 14 months from the date of registration w.e.f. 8-7-2004, the duty was once again exempted on the hosiery goods. The inputs raw material of the appellant is yarn and besides basic duty, Additional Duty of Excise (T & TA) Act, 1978 was also applicable. The Cenvat credit was taken by the appellant. Pursuant to taking credit of the basic input duty and the additional excise duty, the appellant duly declared the same in its excise return and utilized the same for payment of output duty being basic duty + additional excise duty (GSI) and the same was duly disclosed in return. As per the copy of returns available ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... adjudicated and demand was confirmed and proposed equal amount of penalty was confirmed with interest vide Order-in-Original dated 31-3-2006. 2.1 Being aggrieved, the appellant preferred appeal before the Commissioner (Appeals), who also held that there was suppression on part of the appellant and accordingly, the extended period is invocable in this appeal. Being aggrieved, the appellant is before this Tribunal. 3. The learned Counsel for the appellant draws my attention to the copy of the return available on record from which it is evident that the Cenvat credit, the element of credit being basic duty and AED (TTA) in column 5 has also shown the credit balance (credit taken - credit utilized) and the closing balance in the col ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t even in the income tax matter and other matters if any person is asked to get any benefit out of a Section he may take steps and can specifically make such claim in the return so to be filed by him and in case he is entitled to get such relief under the said provisions of law then automatically he will get such benefit otherwise it is always the duty of the authority to call upon the said assessee to explain the position and to give an hearing (sic) that why he could not get the benefit under the said provision that has been done a1through and for the purpose of effecting natural justice to the parties who are coming before the authority and availing the benefit of the relief so granted under the provisions. In the instant case it appears ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s held that there is no case of suppression and accordingly Section 11A is not attracted. The appellant also relies on the ruling of Hon'ble Apex Court in the case of Pushpam Pharmaceuticals Company v. CCE, Bombay - 1995 (78) E.L.T. 401 (S.C.), wherein the Hon'ble Supreme Court on claim of Section 11A has observed as under : - "4. Section 11A empowers the Department to re-open proceedings if the levy has been short-levied or not levied within six months from the relevant date. But the proviso carves out an exception and permits the authority to exercise this power within five years from the relevant date in the circumstances mentioned in the proviso, one of it being suppression of facts. The meaning of the word both in law and even o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gue, from casual look of the return, it is evident that when AED - GSI is leviable in addition to basic duty 8 + 2% indicates in column 5A that the appellant have charged basic duty + AED GSI on his output during 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. (Dictated and pronounced in Court) ..... X X X X Extracts X X X X X X X X Extracts X X X X
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