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TMI Blog2019 (7) TMI 1297X X X X Extracts X X X X X X X X Extracts X X X X ..... per about any independent enquiry yielding any result. Further also it is not the case of the Revenue nor is there any finding that there was an act of suppression by which the appellant intended to evade the tax/duty or successfully evaded the payment of duty. Albeit Show Cause Notice alleges contravention of Rule 6 (1), there is nothing beyond this; no whisper about suppression, fraud, etc., much less even intention to evade payment of duty, in the Show Cause Notice. In the case on hand, there is no dispute about the fact that the ER-1 return disclosed the availment of CENVAT Credit and even though it is filed under self-assessment system, the Officers are supposed to scrutinize the same. Just because the assessee had taken CENVAT C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... et aside. Appeal allowed - decided in favor of appellant. - Excise Appeal No. 40750 of 2018 - FINAL ORDER NO. 40960 / 2019 - Dated:- 25-7-2019 - MR. P. DINESHA, MEMBER (JUDICIAL) Shri. G. Derrick Sam, Advocate for the Appellant Shri. L. Nandakumar, Authorized Representative for the Respondent ORDER When the matter was called out on the date of hearing, Shri. G. Derrick Sam, Ld. Advocate appearing for the assessee, made the following submissions : (i) The appellant manufactures both dutiable and exempted goods; (ii) The Show Cause Notice dated 13.10.2016 came to be issued only after the audit of the records maintained by the assessee and there is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... suppression since every allegation in the Show Cause Notice was picked up from the records/Books of the appellant. He also drew support from the order of the Hyderabad Bench of the Tribunal in the case of M/s. Ultratech Cement Ltd. Vs. Commissioner of Cus. C.Ex., Tirupathi reported in 2016 (339) E.L.T. 127 (Tri. Hyd.) wherein it has been held that the disclosure of availment of CENVAT Credit in the ER-1 returns is sufficient to dislodge the allegation of suppression. He also relied on the following decisions: (i) Rajasthan State Warehousing Corp. Vs. C.C.E., Jaipur 2011 (23) S.T.R. 385 (Tri. Del.); (ii) C.C.E., Bangalore-I Vs. MTR Foods Ltd. 2012 (282) E.L.T. 196 (Kar.); (iii) Garris ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... facturing activity and the availment of CENVAT Credit thereon in respect of exempted goods; (iv) The assessee has ignored the provisions of Rule 9(6) of the CENVAT Credit Rules, 2004; (v) The Show Cause Notice makes out a case that the intention of the assessee was very much there to evade payment of duty and accordingly, justifies the invocation of the larger period of limitation. 2.2 Ld. AR relies on the decision of the Hon ble High Court of Bombay in the case of M/s. Tigrania Metal Steel Industries P. Ltd. Vs. Commissioner of Central Excise reported in 2015 (326) E.L.T. 650 (Bom.) and the order of this Bench of the Tribunal in the case of M/s. Chemfab Alkalis Ltd. Vs. Commissioner of C.Ex., ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ee but otherwise and there is also no whisper about any independent enquiry yielding any result. 5.2 Further, I also find that it is not the case of the Revenue nor is there any finding that there was an act of suppression by which the appellant intended to evade the tax/duty or successfully evaded the payment of duty. Albeit Show Cause Notice alleges contravention of Rule 6 (1), there is nothing beyond this; no whisper about suppression, fraud, etc., much less even intention to evade payment of duty, in the Show Cause Notice. 6. It is also a matter of record that the appellant, upon being pointed out, did reverse the above credit and duly reflected the same in their ER-1 return filed for the month of January 2016. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d as under : 18 . Similarly in Continental Foundation Joint Venture Holding v. Collector of Central Excise, Chandigarh-I, (2007) 10 SCC 337 = 2007 (216) E.L.T. 177 (S.C.), this Court held : .... .... ..... 12. The expression suppression has been used in the proviso to Section 11A of the Act accompanied by very strong words as fraud or collusion and, therefore, has to be construed strictly. Mere omission to give correct information is not suppression of facts unless it was deliberate to stop (sic evade) the payment 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 parti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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