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TMI Blog2020 (12) TMI 875X X X X Extracts X X X X X X X X Extracts X X X X ..... is also no reference to any statutory provisions to justify/ support the said computation of excess CENVAT credit demanded in the instant case. Therefore the entire demand of excess CENVAT credit in the absence of any corroborative evidence is nothing but based on presumptions and is not permissible under the law. The Tribunal in the case of BEER BROS. VERSUS COMMISSIONER OF CENTRAL EXCISE, NEW DELHI-I [ 2015 (9) TMI 1439 - CESTAT NEW DELHI] held that charge of excess cenvat credit on the strength of balance sheet only is not sustainable. Extended period of limitation - HELD THAT:- In the present case, the entire demand is based on the audit objection and is alleged to have been detected only after the audit was conducted - The allegation of suppressing the facts from the department does not hold good in the event of periodic audit of the appellant as above. There is no other evidence in the impugned order to show that the appellant has willfully suppressed the facts from the department in order to evade payment of duty. As such extended period of limitation cannot be invoked in the present case. Appeal allowed - decided in favor of appellant. X X X X Extracts X X X X X X X X Extracts X X X X ..... that the appellant actually did not purchase the raw material relating to the differential amount and did only paper transaction to wrongly avail CENVAT Credit to the tune of ₹ 2,29,94,207/- (including Cesses) during the year 2013-14 and utilized the same for payment of central excise duty.. iii) It was alleged that during the year 2012-13, there was difference in purchase value of ₹ 6,36,16,543/- of raw material as determined on the basis of balance sheet for the year 2012-13 and thus the appellant availed excess CENVAT Credit amount of ₹ 78,63,005/- It has been alleged that as Form 3CD for the year 2012-13 is to be submitted on or before October 2013 and the demand for the financial year 2012-13 is based on the date of submission of balance sheet for the year 2012-13, the demand for the year 2012-13 is well within the time limit of extended period of limitation. iv) Similar analogy has been applied in the succeeding years of 2014-15 to 2016-17 and the appellant appeared to have availed irregular/ inadmissible CENVAT Credit of ₹ 42,96,219/-, ₹ 29,11,688/- & ₹ 1,14,29,519/- respectively . It has been alleged that appellant willfully and deli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t on the differential value between the values arrived from ER-1 returns qua Balance sheets of respective financial year. He submits that ER-1 return does not show CENVAT credit on raw material consumed; the CENVAT credit taken on receipt of inputs are shown in the ER-1 returns. The appellant also received quantity discount on lifting particular quantity during a month from Steel Authority of India Ltd. , Zinc supplier etc. e.g for lifting 500 MT of product in a month, a discount @ ₹ 100/- MT was allowed and credit note to this effect was issued by the supplier and the appellant in the case of quality dispute of the product has issued debit note to the supplier. There were different rates of duty on different inputs consumed on production of final products i.e. on iron & steel products the duty was 12.36% or 12.50%; on Coal Tar duty was 6.18% and on Furnace oil duty was 14.42%. The department neither has taken note of these factors nor has investigated from any consignor of raw material or from any transporter to determine non receipt or short receipt of inputs; that there is no allegation of any flow back and that there is no inculpatory statement brought on records to subst ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y, during the year 2016-17 the appellant received credit not of ₹ 1,57,95,597/ from SAIL and for ₹ 18,21,000/- from Zinc supplier. The said notes were on record before the Ld Adjudicating authority but the same are neither disputed nor commented upon in the impugned order. We also find that there were different rates of duty prevailing during the period under reference i.e. 12.36%, 12.50%, 6.18%, 14.42%. The ld Adjudicating Authority has considered rate of duty only at 12.36% or 12.50%. We find that this method of determining excess CENVAT credit is not provided under the statute as conceded by the Ld AR and cannot be made the basis to further investigate the matter and cannot be the sole ground for denial of CENVAT credit taken. It is observed that there is no other evidence on record like investigation from supplier of raw material, transporter or evidence of cash flow back or any inculpatory statement to substantiate that excess CENVAT credit taken was based on paper transaction i.e. without or short receipt of raw material against invoices. There is also no reference to any statutory provisions to justify/ support the said computation of excess CENVAT credit demande ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e) contravention of any of the provisions of this Act or of the rules made thereunder with intent to evade payment of duty, by any person chargeable with the duty, the Central Excise Officer shall, within five years from the relevant date, serve notice on such person requiring him to show cause why he should not pay the amount specified in the notice along with interest payable thereon under section 11AA and a penalty equivalent to the duty specified in the notice. In the present case, the entire demand is based on the audit objection and is alleged to have been detected only after the audit was conducted. 16. We find the appellant is duly registered with the department and there is no allegation in the impugned order of non submission of any periodical returns. The appellant unit took central excise registration on 12.04.2007 and audit of department and by AG, West Bengal regularly being conducted as per details below :- Sl. No. Audit conducted by Period of Audit Date of Audit conducted Remarks 1. Central Excise Audit party F.Y. 2008 - 2009 08/02/2010 TO 11/02/2010 2. Central Excise Audit party F.Y. 2009 - 2010 22/11/2010 TO 23/11/2010 3. Central Excise ..... X X X X Extracts X X X X X X X X Extracts X X X X
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