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TMI Blog2018 (12) TMI 924X X X X Extracts X X X X X X X X Extracts X X X X ..... and the respective demands have already been paid by the assessee. Penalties - Held that:- There is no whisper of any allegation of suppression of facts with intention to evade payment of duty or invocation of any provision pertaining to extended period in the Show Cause Notice - there is no positive evidence to indicate suppression of facts with intention to evade payment of duty and thus the ingredients for invocation of extended period are not present in the case on hand - Penalties set aside. Appeal allowed in part - part matter on remand. - Appeal No.: E/40046/2013 - Final Order No. 43101/2018 - Dated:- 11-12-2018 - Shri Madhu Mohan Damodhar, Member (Technical) And Shri P. Dinesha, Member (Judicial) Shri. R. Sai Prasanth, Advocate for the Appellant Ms. T. Usha Devi, DC (AR) for the Respondent ORDER Per P. Dinesha : This appeal has been filed by the assessee/appellant against the Order-in-Appeal No. 237/2012 dated 25.09.2012 passed by the Commissioner of Cus. Central Excise (Appeals), Tiruchirapalli. The dispute pertains to the period from February 2004 to September 2004. 2.1 Brief facts are that the appellants are holders of Central ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is threefold, which is tabulated as under : Issue/ Sl. No. Issue in dispute Amount of duty (in Rs.) I Denial of CENVAT Credit availed on MS Sheets used exclusively in the manufacture of exempted PCC pipes 7,87,638/- II Duty on MS Specials/Flanges and Tees cleared as pipes falling under Chapter Heading 7305 on non-payment of duty. (the Department has alleged that the same are pipe fittings falling under Chapter Heading 7307) 1,84,850/- III Short-paid duty on the ground that the appellant had cleared a dutiable final product upon payment as per Rule 6(3)(b) amount @ 8% instead of @ 10% as amended vide Notification No. 23/2004-CE (NT) dated 10.09.2004 on one Invoice No. 1043 dated 20.09.2004 1,184/- Ld. Advocate stated that he is contesting the disallowance of input service tax Credit of ₹ 7,87,638/- on MS Sheets alone (Sl. No. I of the above table); the other two demands of ₹ 1,84,850/- and ₹ 1,184/- in Sl. Nos. II III respectively are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red by the appellant had been increased to 10% from 8% as w.e.f. 10.09.2004 vide Notification No. 23/2004-CE (NT) dated 10.09.2004. He submitted that the payment of duty at the rate of 8% on a clearance effect vide Invoice dated 20.09.2004 was an inadvertent error made on one invoice alone which had been issued within days of the amendment being made. Further, the appellant has already paid the short-paid duty. Hence, no penalty is imposable as no case has been made out by the Department to prove that the appellant has satisfied the ingredients under Section 11AC of the Act ibid. 4.3.3 Ld. Advocate further stated that there is neither any allegation of suppression nor invocation of any provision in the Show Cause Notice to impose penalty for Issues II III against the appellant; that there was no finding in either in the Order-in-Original or in the impugned Order-in-Appeal to allege suppression or any other grounds to impose penalty. He therefore contended that when there is no finding, the imposition of penalty or invocation of extended period is unjustified. 5. Per contra, Ld. AR supported the findings of the authorities below. She argued that even with regard to the Issue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uppression of facts with intention to evade payment of duty attracting the ingredients for invocation of extended period. In such event, the demand for the extended period with respect to the issues which are not contested on merits and stated in the table in para 3.1, requires to be set aside as being time barred, which we hereby do. 10. We make it clear that the appellant is liable to pay the duty demand falling under the normal period. For the same reasons the penalties imposed are also set aside. For the limited purpose of re-quantification, we remand the matter to the adjudicating authority. 7.2 From the discussions made hereinabove, we are of the considered view that the appellant is liable to reverse the CENVAT Credit, however, the amount of ₹ 21,48,550/- already paid by them being over and above the amount of Credit disallowed, the same is required to be adjusted from the amount already reversed as above. Therefore, we deem it fit to remand the matter for the limited purpose of re-quantification of demand on this issue alone after giving adjustment of the amount already reversed by the appellant. 7.3 Similarly, following the reasons given in the case of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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