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TMI Blog2019 (6) TMI 734X X X X Extracts X X X X X X X X Extracts X X X X ..... t the appellant has suppressed or willfully misstated any facts. The documents show that the appellants have informed all the details with regard to classification and the rate of duty adopted by them in the letters issued by them to the department - We do not find any iota of evidence to establish the ingredients under section 11AC of the Central Excise Act, 1944. The Show Cause Notice therefore is time-barred and cannot sustain. The appeal is allowed on the ground of limitation. - Excise Appeal No. 40805 of 2013 - Final Order No. 40833/2019 - Dated:- 12-6-2019 - Mrs. Sulekha Beevi C.S., Member (Judicial) and Shri P. Venkata Subba Rao, Member (Technical) Shri M. Karthikeyan, Advocate for the Appellant Shri B. Balamurugan, AC (AR) for the Respondent ORDER Brief facts are that the appellants are engaged in the manufacture and clearance of Streptokinase and are availing the facility of CENVAT credit on capital goods, inputs and input services. The appellant has been licensed to manufacture the product Lifokinase (Streptokinase bulk solutions) by the Director of Drug Controls. The appellant classified this produc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wrongly availed credit of duty on capital goods, inputs and input services to the tune of ₹ 65,56,978/- along with interest and also to recover an amount of ₹ 46,49,379/- being the amount of excise duty collected from the buyers and to be deposited with the Central Government under section 11D of Central Excise Act, 1944 along with interest on the above amount besides penalties. After due process of law, the original authority dropped the proposal for demand of excise duty of ₹ 46,49,379/- under section 11D of Central Excise Act, 1944 as well as to impose penalty under Rule 15(1) of CENVAT Credit Rules, 2004. However, the demand of ₹ 65,56,978/- being the wrongly availed credit was confirmed along with interest and equal penalty was imposed under Rule 15(2) of CENVAT Credit Rules, 2004 r/w section 11AC of Central Excise Act, 1944. Aggrieved by the above confirmation of demand in respect of the CENVAT credit availed as well as penalty imposed, the appellant is now before the Tribunal. 6. The ld. counsel Shri M. Karthikeyan opened his argument explaining the events prior to the issuance of the Show Cause Notice. He submitted that the appellant sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be collected and that the same cannot be considered as excise duty. That therefore the appellant is liable to pay an amount along with interest as provided under section11D of the Central Excise Act, 1944. The adjudicating authority has rightly set aside the demand made under section 11D of Central Excise Act, 1944. 9. However, the adjudicating authority proceeded to confirm the demand raised alleging wrong availment of credit on capital goods, inputs and input services. It is argued by him that the department was all along aware that the appellant was classifying the goods under 35079061 and clearing the goods by payment of central excise duty @4%. They even issued a letter in January 2010 requiring the appellant to discharge the duty @ 8%. Thereafter, on taking legal opinion, the appellant has informed the department that they are not liable to pay duty since the produce is exempt from duty as per Notification No. 4/2006 r/w Notification 21/2002. This being the fact, the allegation that the appellant has wrongly availed the credit and suppressed the facts with intent to evade payment of duty cannot sustain. The Show Cause Notice for the period June 2009 to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . It is to kindly inform you that we M/s. Shasun Chemicals and Drugs Ltd., located at No. 60, Velacherry Main Road, Velachery, Chennai 600 042 are already registrant before Central Excise with Registration No. AAACS5031LXM001. Subsequent to the above, we now intend to manufacture Streptokinase falling under Chapter Heading No. 35079061 for both export and domestic sales. We are enclosing herewith the Registration Certificate in original with other relevant documents for your kind perusal and for necessary incorporation of the new product as referred above. 13. The appellant thereafter had been clearing the goods under the above Chapter Heading and discharging duty @ 4%. On 7.1.2010, the department has issued a letter requiring the appellant to pay higher duty @ 8% along with an annexure calculating the rate of duty for the period April 2009 to November 2009. The relevant part of the letter issued by the department is reproduced as under:- Scrutiny of returns filed by you reveal that you have paid 4% of duty on the products manufactured by you. As per your returns you have classified the goods viz. STREPTOKINASE under 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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