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TMI Blog2016 (9) TMI 732X X X X Extracts X X X X X X X X Extracts X X X X ..... e respondents have availed CENVAT credit of service tax paid on the "service tax group resource sharing expenses" under the category of "Business Auxiliary services" and "Business Support Services" as "Input Services" on the basis of the invoices issued by their sister concern i.e. M/s Amara Raja Batteries Ltd., Karakambadi and M/s Mangal Precision Products Ltd (ARBL and MPPL). The total CENVAT credit availed during the period from April, 2009 to February, 2011 was Rs. 31,11,108/- and an amount of Rs. 8,68,833/- was similarly availed during the period from March, 2011 to December, 2011. The respondents were having an understanding with their two sister concerns i.e., M/s Amara Raja Batteries Ltd., and M/s Mangal Precision Products Ltd., for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Central Excise Act, 1944. With reference to SCN dated 29.02.2012 (period March, 2011 to December, 2011), the adjudicating authority confirmed and ordered the recovery of irregularly availed / utilized CENVAT Credit amounting Rs. 8,68,833/- involving common sharing expenses during the period from March, 2011 to December, 2011 with interest thereon, imposed penalty of Rs. 2,00,000/- under Rule 15(1) of CENVAT Credit Rules, 2004. 3. Aggrieved by these orders, the appellant filed appeals before the Commissioner (Appeals) who vide Order-in-Appeal dated 07.03.2013, upheld the demands in respect of the period March 2011 to December, 2011; however in respect of the demands in respect of period April, 2009 to February, 2011 while not inter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n law. 8. For better analysis of the issue at hand, it would be worthwhile to -reproduce the relevant provisions of Section 11A (2B) of the Central Excise Act, 1944 as it stood during the impugned period before it was amended with effect from 08.04.2011: "(2B) Where any duty of excise has not been levied or paid or has been short-levied or short-paid or erroneously refunded, the person, chargeable with the duty, may pay the amount of duty, on the basis. of his own ascertainment of such duty or on the basis of duty ascertained by a Central Excise Officer before service of notice on him under sub-section (1) in respect of the duty, and inform the Central Excise Officer of such payment in writing, who, on receipt of such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y disbars the aforesaid option to those cases where the duty was not levied /short levied, not paid/short paid etc., on account of fraud, collusion or any wilful misstatement or suppression of facts. Once these adverse factors are present, the "shall not serve any notice" provision will not apply. By implication, a show cause notice will have to be issued, and since, any of the aspects of fraud, collusion, wilful misstatement or suppression of facts are present, such notice shall necessarily attract the provisions of S 11AC of the Act which mandates penalty the duty not levied /short levied, not paid/short paid etc. 10. From the facts of the case at hand, it is not disputed that the Commissioner (Appeals) has upheld the adjudicating autho ..... X X X X Extracts X X X X X X X X Extracts X X X X
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