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TMI Blog2016 (3) TMI 161X X X X Extracts X X X X X X X X Extracts X X X X ..... ful misstatement with intent to evade payment of Central Excise Duty, for the reason that the appellant had maintained proper records showing availment and utilization of cenvat credit on such disputed duty. Therefore, in absence of those ingredients, issuance of show cause notice should be confined to a period of one year from the date of utilization of such wrongly availed credit. It is not in dispute that the appellant has not complied with the statutory provisions in not filing the returns in time and that the credit particulars were not reflected therein. Since, the information regarding taking of cenvat credit on the disputed duty amount and utilization thereof for clearance of the finished products was within the knowledge of the Dep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ics, the Audit Officers of the Central Excise Department objected to such utilization of credit in terms of the provisions of Rule 3 (6) (b) of the Cenvat Credit Rules, 2002. The reason assigned for such objection is that cenvat credit of AED (T TA) taken on inputs can only be utilized towards payment of AED (T TA) and not towards payment of BED leviable on the final product. Accordingly, show cause notice dated 04.03.2008 was issued to the appellant proposing for recovery of the cenvat credit taken on AED ( T TA) utilized towards basic excise duty under Rule 12 of the Cenvat Credit Rule, 2002 read with Section 11A of the Central Excise Act, 1944 by invoking the extended period of limitation. The said show cause notice was adjudicated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8) E.L.T. 401 (S.C.) 3. CCE vs. Chemphar Drugs Liniments reported in 1989 (40) E.L.T. 276 (S.C.) 4. CCE Cus., Aurangabad Vs. Swastic Auto Products reported in 2008 (222) E.L.T. 200 (Bom.) 5. K.G. Denim Ltd. vs. CCE, Salem reported in 2008 (222) E.L.T. 464 (Tri. Chennai) 6. Sterlite Telelink Ltd. vs. CCE, Vapi reported in 2014 (312) E.L.T. 353 (Tri. Ahmd.) 3. On the other hand, Shri R.K. Gupta, ld. D.R. appearing for the respondent submitted that the appellant had intentionally utilized the AED (T TA) for payment of basic excise duty, knowing fully well that such utilization is prohibited under Rule 3 (6) (b) of the Cenvat Credit Rules, 2002. Thus, according to the ld. D.R., initiation of proceedings for recover ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt and utilization thereof for clearance of the finished products was within the knowledge of the Department, the show cause notice issued on 04.03.2008, proposing recovery of cenvat credit for the period April 2003 to July, 2004, in my opinion, is barred by limitation of time. I find that this Tribunal in the case of K.G. Denim Ltd. vs. CCE, Salem reported in 2008 (222) E.L.T. 464 (Tri. Chennai), in an identical set of facts though have held that AED (T TA) cannot be utilized for payment of basic excise duty, but has allowed the appeal of the appellant on the ground of limitation. 6. Therefore, I am of the view that proceeding initiated by Department for recovery of wrongly availed cenvat credit alongwith interest and imposition of pe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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