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TMI Blog2019 (8) TMI 1174X X X X Extracts X X X X X X X X Extracts X X X X ..... and taking the trading activity as Exempted Services, availed the CENVAT Credit which is sought to be reversed and recovered by the Department invoking the extended period of limitation. Such a bona fide belief cannot be held to be done with ulterior purpose for evading the Duty and therefore, the extended period of limitation would not be available to the Revenue Authority in view of the aforesaid decision rendered by the Hon'ble Supreme Court in COMMISSIONER OF CENTRAL EXICSE, VAPI VERSUS M/S. KOLETY GUM INDUSTRIES [ 2016 (5) TMI 275 - SUPREME COURT] . Appeal dismissed - decided against Revenue. - C.M.A.No.2438 of 2018 - - - Dated:- 23-7-2019 - Dr. Justice Vineet Kothari And Mr. Justice C.V. Karthikeyan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... submitted that the concept of knowledge of the Department about the alleged payment of duty on the part of the Assessee on the basis of some Audit Report in the past could not be attributed upon the Adjudicating Authority to prohibit him from invoking the extended period of limitation and therefore, the learned Tribunal has erred in giving such benefit to the Assessee in the present case and holding that extended period of limitation could not be invoked by the Revenue Authority. 3. Per contra , the learned counsel for the Assessee relied upon the decision of the Hon'ble Supreme Court in the case of Commissioner of Central Excise v. Kolety Gum Industries (2016 (335) ELT 581 (SC)) in which the Hon'ble Supreme C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ngs out the bona fide belief of the appellant that they were under the impression that their activity is an exempted service and would be able to avail credit by following the procedures under Rule 6 (2) and (3). Further, they have been filing service tax returns regularly and they have been subjected to periodical audit. Even in CERA audit, the said objection was not raised on the availment of credit on common input services used for trading and taxable outcome service. In such circumstances, the appellant cannot be saddled with intention to evade payment of service tax. There is no other evidence brought out by the department to conclude that the appellant is guilty of suppression of facts with intent to evade payment o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s.King Bell Apparels ( supra ) are not applicable to the facts of the present case as even without attributing any knowledge to the Revenue Authority about such dispute, the fact remains that in view of the Explanation inserted later on in favour of the Assessee for the period prior to 1.4.2011, the Revenue Authority cannot be permitted to reverse such CENVAT Credit and recover the Duty, alleged to have been evaded by the Assessee, invoking the extended period of limitation under Section 11A of the Act. 8. Therefore, the controversy stands covered by the Supreme Court decision in Kolety Gum Industries case (supra), relied upon by the learned counsel for the Assessee and the present Appeal of Revenue is found to be d ..... X X X X Extracts X X X X X X X X Extracts X X X X
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