2018 (5) TMI 1407

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..... led to avail CENVAT credit - appellant is entitled to avail Cenvat credit. Extended period of limitation - Penalty - Held that: - As the period involved in this case is 2008-2009 and from the facts of the case, it is not coming out when the audit took place, in that circumstances, the SCN has been issued by invoking extended period of limitation is not sustainable - penalty not imposable. Appeal allowed - decided in favor of appellant.
Mr. Ashok Jindal, Member (Judicial) Present for the Appellant(s): Shri. Naveen Bindal Present for the Respondent(s): Shri. G.S. Dhillon Per : Ashok Jindal The appellant is in appeals against the impugned order denying the Cenvat credit on capital goods availed by the appellant. 2. The facts of the .....

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..... 45 (Tri.- Ahmd.), the appellant is entitled to avail Cenvat credit, he also relied on the decision of Jay Precision products India Pvt. Ltd. Vs. Commissioner of C.Ex., Mumbai-2014 (312) E.L.T 696 (Tri.-Mumbai), Multi Chem Vs. Commissioner.(Appeals) of C.Ex., Cus.& S.T., Vadodara-I - 2017 (357) E.L.T. 1123 (Tri. Ahmd) and prayed that the impugned order be set aside and Cenvat credit be allowed. 4. On the other hand, Ld. AR opposed the contention of the Ld. Counsel and submits that as per the decision of Yee Kay Technocrat (P) Ltd. Vs. Commissioner of C.Ex., Delhi-IV, - 2011 (267) E.L.T. 92 (Tri. Del) the appellant has not availed Cenvat credit, therefore, the impugned order is to be upheld. 5. Heard the parties, considered the submissions. .....

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..... rcumstances, I hold that the appellant is entitled to avail Cenvat credit. Therefore, the demand along with interest is not sustainable against the appellant. 7. Now, the question remained with regard to the penalty. In this case, the show cause notice has been issued by invoking the extended period of limitation alleging that appellant has suppressed the fact of availment of depreciation under Section 32 of the Income Tax Act 1962 and the same has come in the knowledge of the Department at the time of audit. As the period involved in this case is 2008-2009 and from the facts of the case, it is not coming out when the audit took place, in that circumstances, the show cause notice has been issued by invoking extended period of limitation is .....

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