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TMI Blog2016 (3) TMI 482X X X X Extracts X X X X X X X X Extracts X X X X ..... finality. I agree with the ld. Advocate that in the case of absence of any intention to evade payment of duty, the extended period would not get invoked. Inasmuch as the demand in the present case stands raised by invoking the longer period of limitation, I find no justifiable reason to uphold the impugned order. However, as ld. DR has referred to the fact that part of the extended period may fall within the limitation period, remand the matter to the original adjudicating authority for examining the said aspect alongwith the appellant s plea that the credit was taken only in April 2010 and not subsequently. The appeal is disposed of in the above manner. - Excise Appeal No. 51047 of 2015-SM - Final Order No. 50991/ 2016 - Dated:- 4-3-2016 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s) set-aside the entire penalty imposed upon the appellant by observing that there was no malafide on their part. She submits that in such a scenario the extended period of limitation would not be applicable inasmuch as the same also requires presence of malafide. Therefore, the said demand which was raised on 21.07.2011 for the period April 2010 is hopelessly barred by limitation. 3. Countering the arguments, ld. DR submits that the disputed period is from April 2010 to September 2010 and as such, part of the demand would fall within the limitation period. 4. Ld. Advocate for the appellant draws my attention to the annexure to the show cause notice and submits that the credit of the disputed items was taken only in April 2010 and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers has been in dispute. There are conflicting decisions on the admissibility of cenvat credit in respect of above items. In the case of CCE, Raipur vs. M/s Jindal Steel Power Ltd. 2011 (263) ELT 557 (Tri. Del.) as relied upon by the appellant, the cenvat credit on above items has been allowed whereas in a recent decision of Hon ble High Court in the case of M/s Bharti Airtel Ltd. vs. CCE, Pune-II 2014 (35) STR 865 (Bom. HC) the cenvat credit on the Towers was held to be inadmissible. Thus the adminissibility of cenvat credit on above item is a legal dispute. In the case of CCE, Pondicherry vs. Revishankar Inds. Pvt. Ltd. 2014 (299) ELT 249 (Tri. Chennai) it has been held that since this is a legal dispute we did not agree with the pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of malafide have attained finality. I agree with the ld. Advocate that in the case of absence of any intention to evade payment of duty, the extended period would not get invoked. Inasmuch as the demand in the present case stands raised by invoking the longer period of limitation, I find no justifiable reason to uphold the impugned order. However, as ld. DR has referred to the fact that part of the extended period may fall within the limitation period, I remand the matter to the original adjudicating authority for examining the said aspect alongwith the appellant s plea that the credit was taken only in April 2010 and not subsequently. The appeal is disposed of in the above manner. ( Dictated and pronounced in open Court ) - - TaxTMI ..... X X X X Extracts X X X X X X X X Extracts X X X X
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