2016 (12) TMI 327

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..... as availed and utilized the credit. The submission made by the learned counsel for the appellant is that the situation is one revenue neutrality as the credit could have been availed by the second unit. Although Department contends that the contravention has come to light only on audit of records, it has to be again stated that on the issue whether appellant is eligible for credit there are divergent views as in the first round of litigation both the authorities held that appellant is eligible for credit. Further as per the definition of input service, the manufacturer is eligible to take credit and not the factory. Therefore the error, if any, is only procedural lapse which cannot be concluded to be suppression or misrepresentation of fact .....

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..... r of the original authority observing that the appellant is eligible for credit. The Department approached the Tribunal by filing appeal No.E/1931/2010 and the Tribunal vide Final Order No.294/2012 dt. 04/05/2012 disposed the appeal by way of remand. In the said order, the Tribunal noted that there was no representation on behalf of the respondent/appellant herein. The Tribunal vide the said Final order held the issue on merits in favour of the Department and observed that as the respondent/assessee had raised the plea of imitation, the same having not been considered by the authorities below, the matter has to be remanded for de novo adjudication on the issue of limitation only. 3. In de novo adjudication, the original authority confirm .....

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..... ground for alleging any suppression, fraud or misrepresentation on the part of the appellant. He also canvassed the proposition that the situation did not give rise to any revenue loss as the credit if not availed by the appellant could have been availed by the second unit. That if at ail it is only a procedure lapse. 5. On behalf of the Department, the learned AR Shri Arun Kumar strongly refuted the contentions put forward by the appellant. He reiterated the findings the impugned order and submitted that the Tribunal on merits has held that appellant is not eligible for credit. The appellant is guilty of suppression of facts as the irregular availment of credit was brought to light only after audit of the records of the appellant. In t .....

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