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TMI Blog2019 (12) TMI 616X X X X Extracts X X X X X X X X Extracts X X X X ..... put and capital goods by raising invoice and debited duty in Unit-II and took credit of the same in Unit-I in terms of Rule 3(5) of the CCR. Both debit and credit entries made by both the units are reflected in the ER-1 returns and due intimation was given to the department by the appellant vide their letter dated 14.6.2010. Further, it is a case of simply stock transfer. Therefore, the restriction as provided in Rule 9(1)(b) of CCR is not applicable because the appellant has not availed credit on supplementary invoices. The appellant has paid the duty voluntarily in terms of Section 11A(2B) of the Central Excise Act on being pointed out by the Preventive Officers and took the credit of the same in Unit-I in terms of Rule 3 of the CCR. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction and space constraint, appellant acquired land adjacent to their Unit-II which is separated by a road. Appellant at the instance of the department took separate registration under the Central Excise Act to new Unit (Unit-I). The process of construction of factory building and installation of machinery was completed only in the month of July 2008 and thereafter, the appellant shifted inputs and certain capital goods from Unit-II to Unit-I for manufacture of dutiable final products. Before shifting the inputs and the capital goods, the appellant followed the advice given by the Jurisdictional Central Excise office with regard to the procedure to be followed for transfer of CENVAT credit from Unit-II to Unit-I. Accordingly, the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Superintendent vide their letter dated 14.6.2010. In this background, the appellant was issued with the first show-cause notice on 23.3.2011 with proposal for demand of Central Excise duty of ₹ 19,76,167/- on the inputs cleared during the period 1.8.2008 to 10.9.2008 along with interest and also proposed to impose penalties under Section 11AC of the Central Excise Act and Rule 25 of the Central Excise Rules. Show-cause notice also proposed to order for appropriation of the duty and interest paid by the appellant. Subsequently, appellant was also issued second show-cause notice dated 4.5.2011 with proposal for denial of CENVAT credit of ₹ 19,76,167/- along with interest under Rule 14 of the CCR and also proposed penalty under R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ration which resulted in stock transfer of inputs and capital goods, as such, in terms of Rule 3(5) of the CCR. He further argued that subsequently appellant was issued single registration and hence, the very question of reversal/payment of duty itself does not arise and all the subsequent proceedings are liable to be quashed on this ground itself. It is his further submission that the appellant had stock transferred the goods and therefore the restriction created under provisions of Rule 9(1)(b) of CCR is not applicable to the facts of the present case. He further submitted that Rule 9(1)(b) is not applicable because the appellant has not availed credit on supplementary invoices rather the appellant has paid the duty voluntarily in terms o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ELT 20 (SC) Prakash Food Ltd. vs. CCE, Pune: 2018 (360) ELT 1017 (Tri.-Mumbai) Anglo French Textiles vs. CCE, Puducherry: 2018 (360) ELT 1016 (Tri.-Chennai) Jet Airways (I) Ltd. vs. CST, Mumbai: 2016 (44) STR 465 (Tri.-Mumbai) British Airways vs. Commissioner: 2014 (36) STR 598 (Tri.-Del.) Surya Pharmaceuticals Ltd. vs. CCE, Chandigarh-II: 2016 (43) STR 479 (Tri.-Chan.) 4.2 He also submitted that suppression cannot be alleged against the appellant because the appellant has informed the department vide their letter 14.6.2010 regarding the availment of credit and the denial of credit by invoking longer period of limitation is also not sustain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore, the restriction as provided in Rule 9(1)(b) of CCR is not applicable because the appellant has not availed credit on supplementary invoices. The appellant has paid the duty voluntarily in terms of Section 11A(2B) of the Central Excise Act on being pointed out by the Preventive Officers and took the credit of the same in Unit-I in terms of Rule 3 of the CCR. Therefore, in view of the decision of the Karnataka High Court in the case of KSDL vs. CCE (supra), it has been held that delayed payment of duty voluntarily paid on being pointed out by the department does not amount to suppression with intent to evade payment of duty and hence, credit cannot be denied by invoking provisions of Rule 9(1)(b) of CCR. Further, I find that in view of t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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