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TMI Blog2019 (2) TMI 254X X X X Extracts X X X X X X X X Extracts X X X X ..... ection after going through the accounts in 2013, it can be safely concluded that the credit was sufficient to adjust to the duty liability. Merely because the appellants could not produce certain invoices, after more than two years cannot be a found to saddle them guilt of suppression of facts. The department has failed to establish any suppression of facts on the part of the appellants with an intention to evade payment of duty. The demand raised invoking the extended period, therefore, cannot sustain - appeal allowed on the ground of limitation. - E/42093/2018 - FINAL ORDER NO. 42920/2018 - Dated:- 20-11-2018 - Smt. Sulekha Beevi C.S, Judicial Member For the Appellant: Shri S. Jayanth, Cons. For the Respondent: Shri L. N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e penalty was sustained. Aggrieved, the appellants are now before the Tribunal. 2. On behalf of the appellants the learned counsel Shri S. Jayanth appeared and argued the matter. He submitted that the main raw material used for the manufacture is Bitumen procured from the oil industries namely, IOCL, BPCL and HPCL. The appellants were availing SSI exemption till 2010-11 as their clearances was below ₹ 150 lakhs. However, it was omitted to notice by oversight that the clearances had exceeded ₹ 150 lakhs on 31.10.2011. It was detected by the appellants themselves and have issued a letter to the department dated 18.01.2013 explaining their clearances have exceeded the prescribed limit and, therefore, they have got registered for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dit party was satisfied that there is no duty liability for the period 2011-12. 3. To the surprise of the appellants', a show-cause notice dated 22.08.2016 was issued invoking extended period, alleging suppression of facts and demand of duty of ₹ 9,81,894/-. The appellants contested the demand and submitted the invoices on which credit was available. They had submitted 36 invoices on which the credit of ₹ 3,73,607/- was worked out by the adjudicating authority. Due to the Wardha Cyclone in 2016, the appellants had lost some of the invoices and could not produce the entire invoices. Though, the appellants had pleaded that the invoices were produced before the audit party and that audit had not raised any objection, it was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he premises and verified all documents in 2013 and had not raised any objection. He, therefore, pleaded that the extended period invoked is incorrect and not sustainable. 5. The learned Authorised Representative Shri L. Nandakumar supported the findings in the impugned order. Admittedly, the appellants exceeded the SSI limit during the period 2011-12. They have taken registration only on 18.01.2012 and have started paying the duty only from such date. The appellants were able to produce the entire invoices to support their claim of Cenvat credit. The authorities below have given assessments of credit of all the invoices produced by the appellants. Therefore, the demand is legal and proper. 6. Heard both sides. 7. The learned consul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e objection by paying up the wrongly availed credit along with interest. The audit party also after verification of amounts had not raised any objection with regard to the adjustment of Cenvat Credit towards the duty liability for the period 2011-12. This leads to the strong inference that audit party did not find any short-payment of duty. Interestingly, the show-cause notice is issued after more than two years invoking the extended period alleging suppression of facts. When the appellants themselves had informed the department regarding the omission to pay duty, I find that the allegation of suppression is without any factual basis. So also, when the audit party has not raised any objection after going through the accounts in 2013, it can ..... X X X X Extracts X X X X X X X X Extracts X X X X
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