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TMI Blog2019 (2) TMI 1297X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant has reversed the entire credit on 31.1.2011. All these would go to show that there was no intention to evade payment of duty or tax less any positive act of suppression on the part of the appellant - the department has miserably failed to establish with cogent evidence that the appellant is guilty of suppression of facts with intention to evade payment of duty so as to invoke the extended period of limitation. The show cause notice issued to the appellant is time-barred. Appeal succeeds on limitation. - E/Misc./41964/2017 & E/535/2012 - Final Order No. 40317 / 2019 - Dated:- 19-2-2019 - Hon ble Ms. Sulekha Beevi C.S., Member ( Judicial ) And Hon ble Shri Madhu Mohan Damodhar, Member ( Technical ) Ms. P. Kanthi Visalaks ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith interest and also for imposing penalties. After due process of law, the original authority confirmed the demand, interest and imposed penalties and also ordered appropriation of the amount paid / reversed by the appellant. In appeal, Commissioner (Appeals) upheld the same. Hence this appeal. 2. On behalf of the appellant, ld. counsel Ms. P. Kanthi Visalakshmi appeared and argued the matter. She submitted that the period involved is from April 2004 to May 2009 and the show cause notice dated 4.5.2010 has been issued invoking the extended period of limitation. In fact, the appellant had availed the CENVAT credit on the inputs, input services for production of electricity which is used in the manufacturing activity as well as electricit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers and Chemicals Ltd. 2008 (229) ELT 9 (SC) and Commissioner of Central Excise Vs. Gujarat Narmada Fertilizers co. Ltd. 2009 (240) ELT 661 (SC), the Hon ble Apex Court had taken a different view. In the case of Commissioner of Central Excise, Vadodara Vs. Gujarat Narmada Valley Fertilizers Co. Ltd. 2012 (286) ELT 481 (SC), the Apex Court has referred the matter to the Larger Bench, which is pending decision. That the issue being contentious and interpretational in nature, invocation of extended period cannot sustain. Apart from mere allegation that appellant suppressed facts, there is no positive act brought out by the department to establish that there is suppression on the part of the appellant with intent to evade payment of duty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d out of the factory. 4. Heard both sides. 5. The issue is with regard to the demand raised alleging wrong availment of CENVAT credit on inputs and inputs services, capital goods used for production of electricity which is sold to TNEB. The Hon ble Supreme Court in the case of Maruti Suzuki Ltd. 2009 (240) ELT 641 (SC) has held that the credit in respect of input services which is used for electricity that is sold outside is not eligible for credit. Applying this decision, the appellant does not have a case on merits. The ld. counsel for appellant has argued only on the ground of limitation. In para 6 of the impugned order, the Commissioner (Appeals) has noted as under:- 6. Moreover, this disputed issue has been settled fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o evade payment of duty or tax less any positive act of suppression on the part of the appellant. We therefore hold that the department has miserably failed to establish with cogent evidence that the appellant is guilty of suppression of facts with intention to evade payment of duty so as to invoke the extended period of limitation. The show cause notice issued to the appellant is time-barred. The impugned order therefore requires to be set aside, which we hereby do. The appeal succeeds on limitation. We make it clear that if there is any demand for the normal period, the same would sustain. 7. The miscellaneous application filed by Revenue for change of cause title is allowed. ( Pronounced in court on 19.02.2019 ) - - TaxTMI - TM ..... X X X X Extracts X X X X X X X X Extracts X X X X
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