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TMI Blog2018 (11) TMI 826X X X X Extracts X X X X X X X X Extracts X X X X ..... nt that the above goods were never capitalized in the appellant’s books; that they were consumed during the process of the manufacturing activity of the appellant which only proves that they were not having any enduring benefits, etc., has nowhere been attempted to be dislodged - credit remains allowed. Appeal allowed - decided in favor of appellant. - E/20297/2018-SM - Final Order No. 21662 / 2018 - Dated:- 15-10-2018 - MR. P DINESHA, JUDICIAL MEMBER Shri. S. Ramasubramaniam, CA For the Appellant Smt. Kavita Podwal, Superintendent (AR) For the Respondent ORDER Per: P. DINESHA This appeal filed by the assessee relates to the availment of cenvat credit on some of the goods which are found by the adjudicating authority, to be the parts/components or accessories of the machines used for various manufacturing processes by the assessee. A show-cause notice dated 01.06.2016 was issued alleging that the appellant had availed 100% cenvat credit in the following manner, on the above goods, which are falling under Central Excise Tariff Chapter 82, 84, 85 and 90 and that they fall within the meaning of capital goods in terms of Rule 2(a) of Cenvat Credit Rules. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icating authority himself; (E) The dispute relates to the period April 2012 to August 2014; the show-cause notice having been issued on 01.06.2016 by invoking extended period of limitation without attributing mala fides for which, the learned consultant has relied on the decision of Kolkata Bench of the Tribunal in the case of M/s.Landis + Gyr Ltd. Vs. CCE, Kolkata-V-2013 (290) E.L.T. 447 (Tri.-Kolkata); (F) There is no allegation as to fraud or suppression, etc., and therefore, the invocation of extended period of limitation is bad. Reliance is placed on the decision of Hon ble Supreme Court in the case of M/s.Uniworth Textiles Ltd. Vs. CCE, Raipur 2013 (288) E.L.T. 161 (S.C) and also decision of Calcutta High Court in the case of Sourav Ganguly Vs. Union of India - 2016 (43) S.T.R. 482 (Cal.); (G) The appellant has been filing its monthly returns regularly and has been including the details of cenvat credit availed for the period April 2012 to August 2014, the Department has been conducting regular audits and therefore, invoking extended period is bad, for which proposition reliance was placed on the following decisions: i. Sipani Fibres Limited Vs. CCE ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w-cause notice proceeds on the basis that the amount need not be recovered from the noticee which only indicates that the impact is revenue-neutral. In this context, I am persuaded by the observations of the Hon ble Supreme Court in the case of M/s.Nirlon Ltd. Vs. CCE, Mumbai 2015 (320) E.L.T. 22 (S.C) wherein, the Hon ble Apex Court has held as under: 9. We have ourselves indicated that the two types of goods were different in nature. The question is about the intention, namely, whether it was done with bona fide belief or there was some mala fide intentions in doing so. It is here we agree with the contention of the learned Senior Counsel for the appellant, in the circumstances which are explained by him and recorded above. It is stated at the cost of repetition that when the entire exercise was revenue neutral, the appellant could not have achieved any purpose to evade the duty. 10. Therefore, it was not permissible for the respondent to invoke the proviso to Section 11A(1) of the Act and apply the extended period of limitation. In view thereof, we confirm the demand insofar as it pertains to show cause notice dated 25-2-2000. However, as far as show cause notice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ner was perhaps not the most suitable repository of the answers to the queries that the appellant laboured under, it does not take away from the bona fide conduct of the appellant. It still reflects the fact that the appellant made efforts in pursuit of adherence to the law rather than its breach. 24. Further, we are not convinced with the finding of the Tribunal which placed the onus of providing evidence in support of bona fide conduct, by observing that the appellants had not brought anything on record to prove their claim of bona fide conduct, on the appellant. It is a cardinal postulate of law that the burden of proving any form of mala fide lies on the shoulders of the one alleging it. This Court observed in Union of India v. Ashok Kumar Ors. - (2005) 8 SCC 760 that it cannot be overlooked that burden of establishing mala fides is very heavy on the person who alleges it. The allegations of mala fides are often more easily made than proved, and the very seriousness of such allegations demand proof of a high order of credibility. 25. Moreover, this Court, through a catena of decisions, has held that the proviso to Section 28 of the Act finds application only when ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... more than one and if the Excise Department places reliance on the proviso it must be specifically stated in the show-cause notice which is the allegation against the assessee falling within the four corners of the said proviso.... (Emphasis supplied) 26. Hence, on account of the fact that the burden of proof of proving mala fide conduct under the proviso to Section 28 of the Act lies with the Revenue; that in furtherance of the same, no specific averments find a mention in the show cause notice which is a mandatory requirement for commencement of action under the said proviso; and that nothing on record displays a willful default on the part of the appellant, we hold that the extended period of limitation under the said provision could not be invoked against the appellant. 6. Going by the above ruling, I am persuaded to hold that the Revenue has grossly erred in invoking extended period of limitation even after being satisfied that it was the case of revenue neutrality and for which reason alone, I set aside the impugned order. Even on merits, admittedly, the goods are covered under CTH 82, 84, 85 and 90 and just for this reason alone the Revenue has sought it to be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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