2018 (5) TMI 1618

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..... lful misdeclaration with intent to evade payment of duty - appeal allowed - decided in favor of appellant.
Shri S.S Garg, Judicial Member Shri TR Venkateswaran, CA - For the Appellant Dr. J. Harish, Dy. Commissioner (AR) - For the Respondent ORDER The present appeal is directed against the impugned order dt. 16/10/2017 passed by the Commissioner (Appeals) whereby the Commissioner (Appeals) has rejected the appeal of the appellant and upheld the Order-in-Original. 2. Briefly the facts of the present case are that the appellants engaged in the manufacture and clearance of telecom products, connectors and accessories etc. falling under Chapter 85 of the CETA, 1985. The Department conducted audit on the appellant for the period July 201 .....

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..... same is contrary to the binding judicial precedent on the same issue. He further submitted that the show-cause notice is barred by limitation under Section 11A(1) of the CEA and the extended period of limitation cannot be invoked under Section 11A(4) as there has been no instance of fraud, suppression or willful misstatement by the appellant with an intent to evade tax. He further submitted that in the impugned order, learned Commissioner (Appeals) has wrongly observed that the appellant has suppressed the facts with intent to evade duty and availed inadmissible CENVAT credit whereas the appellant treated that there has been no suppression of facts and the payment of duty and interest was made as soon as it was observed during the audit. H .....

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..... construe the acts of the appellant as fit for the applicability of the proviso. 5. On the other hand, the learned AR reiterated the findings of the impugned order and has submitted that the appellant has concealed the factum of availment of CENVAT credit and the same was detected during the audit. He further submitted that Commissioner (Appeals) has rightly given him the liberty to pay 25% of the penalty by resorting to Section 11A(4) and (5). 6. After considering the submissions of both sides and perusal of records, I find that during the audit, the Department raised the objection that the appellant has wrongly availed the CENVAT credit and the same was paid immediately by the appellant along with interest. Since the duty was paid along .....

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