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TMI Blog2019 (1) TMI 54X X X X Extracts X X X X X X X X Extracts X X X X ..... justified in insisting that appellant reverse cenvat credit in terms of Rule 6(3)(i) of Cenvat Credit Rules - the appeal is allowed on merits as well as on limitation with consequential benefits - decided in favor of appellant. - Appeal No.: E/42576/2014 - Final Order No. 43167/2018 - Dated:- 28-12-2018 - Shri Madhu Mohan Damodhar, Member (Technical) And Shri P. Dinesha, Member (Judicial Shri. M. Kannan, Advocate for the Appellant Shri. A. Cletus, ADC (AR) for the Respondent ORDER Per P. Dinesha : In this appeal, the assessee has questioned the liability of Excise Duty of ₹ 7,19,72,721/- raised by the Commissioner of Central Excise Salem vide Order-in-Original dated 20.06.2014. 2. Alleging contrave ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to the Department as early as 18.11.2010 much before the issuance of Show Cause Notice. He also submitted that in view of the above, the Show Cause Notice issued on 06.05.2013 is clearly beyond the period of limitation for which the Department has no justification. 4.2 He further pointed out that the allegations in the Show Cause Notice are made after considering the regular ER-1 returns filed by the assessee for and during the period of dispute which were audited and therefore, the invocation of extended period of limitation is improper; that the Credit availed on common inputs during the entire period covered was only ₹ 58,22,288/- whereas the demand raised is ₹ 7,19,72,721/-, which is arbitrary and contrary to the provis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly reason for raising the demand to the extent of 10% / 8% / 6% of traded goods for the disputed period, is that the appellants have not filed declaration as contemplated in Rule 6 (3A). The said issue has been settled by the decisions relied by the Ld. Counsel for appellant. The Tribunal in the case of Dalmia Bharat Sugar Industries Ltd., vs. CCE-2017-TIOL-113-CESTAT-DEL has followed the decision in the case of Mercedes Benz India Pvt Ltd (supra), wherein it was observed as under :- 8. We find that the coordinate Bench of this Tribunal in the case of Mercedes Benz India Pvt. Ltd. v. C.C.E., Pune I - 2015 (40) STR 381 (Tri-Mum.) = 2015-TIOL-1550-CESTAT-MUM has held that the condition given in Rule 6(3A) to intimate the Department i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... act of choosing . From the said meaning of the term 'option', it is clear that it is the appellant who have liberty to decide which option to be exercised and not the Revenue to decide the same. 9. In the light of the above decision of the coordinate Bench we find that the Commissioner is not justified in insisting that appellant reverse cenvat credit in terms of Rule 6(3)(i) of Cenvat Credit Rules. The claim of the appellant is that they have already reversed on proportionate basis, the cenvat credit along with interest amount payable in terms of Rule 6(3A). However, the Department is entitled to verify whether reversal of the amount already made by the appellant satisfies the requirement of Rule 6(3)(ii) notwithstanding th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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