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TMI Blog2020 (3) TMI 147X X X X Extracts X X X X X X X X Extracts X X X X ..... allegation that the appellants have written off the value after the period 2010 is factually incorrect as evidenced from annexure to the show cause notice. For this reason itself, the demand raised invoking the extended period cannot sustain. It is for the department to prove the allegations raised in the SCN. Even from the SCN or the documents placed before me, there is no evidence to show that the appellants have written off the full value of capital goods. There is only partial writing off to the extent of 50%, 70%, 90%. On such score, the amendment brought forth w.e.f. 1.3.2011 to reverse the credit on partial written off value would only apply. However, the provision for recovery of the credit availed wrongly has been introduced only w.e.f. 1.3.2013. This being the case, the demand raised for the credit availed from 1994-2010 and written off during this period cannot sustain. Demand cannot sustain - appeal allowed - decided in favor of appellant. - Excise Appeal No.42591 of 2017 - - - Dated:- 28-2-2020 - HON BLE MS. SULEKHA BEEVI. C.S., MEMBER (JUDICIAL) Ms. Krithika Jaganathan, Advocate For the Appellant Shri Vikas Jhajhariya, AC (AR) For the Respond ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he period 1994-2010. However, the department is of the view that appellant has fully written off the value of the capital goods and that appellant has to reverse the credit in respect of these capital goods. The allegation of the department that appellant has fully written off the value is incorrect. In fact, the Commissioner (Appeals) had granted relief to the appellant in respect of certain documents wherein appellant showed that the value was partially only written off. The alleged credit is from 1994 to 2010 and the SCN is issued in 2015. Appellant and submitted that the value was only partially written off. It can be seen from the annexure to show cause notice that appellant has not written off the full value of capital goods pertaining to the year 1994-2010. 3. Further that the provision requiring the assessee to pay up cenvat credit in respect of partially written off capital goods/ inputs was introduced only w.e.f. 1.3.2011. The appellant has been complying with the provisions after this date whenever the capital goods were partially written off. The demand pertains to the credit availed on capital goods which were partially written off for the period from 1994-2010 an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dit availed for the period 1994-2010 and carried over for the period 2011 and upto 2013-14. I do not find any reason as to how the department has called upon to pay up the cenvat credit availed and written off by the appellants, whether partially or fully for the period from 1994-2010 by issuing a show cause notice on 30.4.2015. The annexure to the SCN shows the demand is raised in respect of the credit availed from 1994 to 2010. This annexure shows the year of purchase of capital goods from 1994 to 2009 and the written off the value is done during this period. In the year 2010 and thereafter, there is no writing off the value of the capital goods but the amounts were carried forward to subsequent years. The act of writing off has happened prior to 2010. Thus the allegation that the appellants have written off the value after the period 2010 is factually incorrect as evidenced from annexure to the show cause notice. For this reason itself, the demand raised invoking the extended period in my view cannot sustain. However, going into the merits of the matter, it is necessary to reproduce Rule 3(5B) as amended in 2013 which is as under : (5B) If the value of any, (i) input ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he manufacturer of goods or the provider of output service fails to pay the amount payable under sub-rule (5), (5A) and (5B), it shall be recovered, in the manner as provided in Rule 14, for recovery of CENVAT credit wrongly taken. 8. Learned Counsel have also pressed the ground that as they were not required to reverse the cenvat credit on partial writing down the value of inputs, prior to 01.03.2011, accordingly, we hold that as there was no such legal requirement. The learned Counsel also prays that they are entitled to refund, already reversed credit on account of partial writing down of value, prior to 01.03.2013. 9. In this view of the matter, we hold that the issue has arisen due to change of opinion on the part of the Revenue, but there is no suppression of facts on the part of the appellants. Further, we find that no amount was due to be reversed under rule 3(5B) on the date of issue of show cause notice. Accordingly, we hold that larger period for limitation can not be invoked and no show cause notice was required to be issued. Accordingly, we hold that impugned order is not sustainable, and is set aside. Appeal is allowed with consequential relief. In this vi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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