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TMI Blog2019 (3) TMI 104X X X X Extracts X X X X X X X X Extracts X X X X ..... of CETA, 1985. During the course of verification of the records of the appellant by the departmental audit team, it was noticed that the appellant had: a. availed ineligible credit on the component of Customs Education Cess & Customs Higher Secondary Cess paid on imported inputs and inputs procured from 100% EOU to the extent of Rs. 20,85,898/-. b. availed CENVAT credit on in-eligible services amounting to Rs. 1,67,475/-. c. wrongly availed CENVAT credit on steel items falling under Chapter 72 or 73 of CETA, 1985 amounting to Rs. 41,962/-. d. availed input Service Tax credit on ineligible service amounting to Rs. 2,67,675/-. 2.1. On these allegations, a SCN dated 07.11.2014 was issued to them demanding recovery of CENVAT credit along w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed the issue without the issuance of SCN as was legally expected from the Department. 5. On the other hand, the Ld. AR defended the impugned order and submitted that there was suppression on the part of the appellant which was found during Audit and therefore, the appellants are liable to pay the penalty. 6. After considering the submissions of both the parties and perusal of the material on record, I find that the appellant has paid the entire duty along with interest much before the issuance of SCN and has prayed that the case should be closed. Further, I find that the appellants have shown CENVAT credit taken on various items in their books of accounts and the Revenue has not brought out any material to show that there was suppression ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment of duty. Suppression means failure to disclose full information with the intent to evade payment of duty. When the facts are known to both the parties, omission by one party to do what he might have done would not render it suppression. When the Revenue invokes the extended period of limitation under Section 11A the burden is cast upon it to prove suppression of fact. An incorrect statement cannot be equated with a willful misstatement. The latter implies making of an incorrect statement with the knowledge that the statement was not correct." 6.2. Further, I find that it is well established position of law that mere failure, inaction or negligence on the part of the assessee not to pay tax/duty cannot be considered as amounting to su ..... X X X X Extracts X X X X X X X X Extracts X X X X
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