2019 (6) TMI 6

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..... re can be no case for suppression for invoking larger period also. This assumes more relevance and importance especially when there was an audit in September 2009. I accept the contentions of the assessee as to the non-justification in invoking the larger period and I am therefore constrained to hold that the proceedings in the above appeal is badly hit by limitation since there is no case made out by the Revenue to justify the invocation of extended period. This being so, the impugned order cannot be sustained - appeal allowed - decided in favor of appellant. - E/40310/2017 - Final Order No. 40587/2019 - Dated:- 22-3-2019 - Shri P. Dinesha, Judicial Member For Appellant: Shri joseph Prabakar, Advocate, .....

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..... edings and the first appellate authority vide impugned order dated 25.10.2016 has, to a certain extent, reversed the order of the adjudicating authority. In the impugned order, the Ld. Commissioner (Appeals) has upheld the alleged wrong availment of Cenvat credit of ₹ 8,37,702/- in the month of June 2008 which, according to him, was contrary to the provisions of Rule 8 of the Central Excise Rules, 2002, read with proviso to Section 11 A (1) of the Act. The Commissioner (Appeals) has not accepted the findings of the original authority that the appellant had made the payment in PLA but however, the Commissioner finds no incriminating circumstances to impose penalty under Rule 15 (2) of the Cenvat Credit Rules,2004. Aggrieved, assessee h .....

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..... nce the ingredients/requirements of law for invoking larger period wholly rests on suppression, etc. So, viewed in this context, what is not applicable to one cannot be made applicable to another: when there is no suppression for levying penalty, there can be no case for suppression for invoking larger period also. This assumes more relevance and importance especially when there was an audit in September 2009. It is a matter of record that there was an internal audit on 23.09.2009 (paragraph-5.2 of OIO) in the appellant s case and the audit party pointed out the discrepancy but, however, advised payment of interest for six days of ₹ 8,079/-. The Revenue happily accepted the above interest paid by the assessee on 08.10.2009, woke up ne .....

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