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TMI Blog2022 (6) TMI 556X X X X Extracts X X X X X X X X Extracts X X X X ..... to say that there is any suppression on the part of the appellant as the procedure adopted by the appellant was well within the knowledge of the Revenue way back since the year 2011 and accordingly extended period of limitation is not invocable on the facts of the present case - Otherwise also it is settled legal principle as laid down by the Hon ble Supreme Court in catena of decisions that something positive other than mere inaction or failure on the part of the manufacturer or producer or conscious or deliberate withholding of information when the manufacturer knew otherwise, is required before the assessee is saddled with any duty liability. Therefore, mere short payment of duty by the appellant is not sufficient in order to invoke the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut effected under Rule 3(5) of Cenvat Credit Rules, 2004? 3. The appellant herein are engaged in manufacture of Colour T.V., LCD, LED, Washing Machines, Split Air Conditioners and its spare parts and are availing Cenvat Credit as per Rule 3 of Cenvat Credit Rules, 2004. They are providing after sale service to their customers and clearing spares and components for the said service. Free services were provided for in-warranty period, whereas for out-warranty period the services were provided on chargeable basis. For both the services they had outsourced the same to M/s. Adonis Electronics Pvt. Ltd., who were providing the service to the appellant s customers. The appellants were getting the report by 5th of next month, of raw materials co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Commissioner (Appeals) was rejected. 4. The Learned Chartered Accountant explained the procedure adopted by the appellant which is in issue. According to him while supplying the raw material as required by their service agent M/s. Adonis Electronics Pvt. Ltd. for giving after sales service to appellant s customers, nil rate of duty is shown in invoice of stock transfer as no duty is payable on clearance of in-warranty spares, but the spares cleared for in-warranty are also utilized by their service agent for out-warranty service and the monthly report is sent by their service agent regarding the total quantity of spares (raw material) consumed under the category of in-warranty and out-warranty service by 5th day of the next month. Ba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th Asian Petrochem Ltd. v/s CC, Kolkata; 2007 (219) ELT 991 (Tri-Kolkata) and (iii) Gujarat NRE Coke Ltd v/s CCE, Rajkot; 2012 (27) STR 372 (Tri-Ahmd). He further submits that if suo moto availment of credit is allowed, suo moto adjustment of credit also cannot be disputed and in support of this submissions learned Chartered Accountant placed reliance on the decision of the Hon ble Madras High Court in the matter of ICMC Co-operation Ltd. v/s CESTAT, Chennai; 2017 (49) STR 490 (Mad.) and also on the decision of Hon ble Allahabad High Court in the matter of Krishnav Engineering Ltd. v/s CESTAT; 2016 (331) ELT 391 (All.). It was also the contention that since entire proceeding is Revenue neutral, there is no loss to the Revenue and so the de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt and learned Authorised Representative for the Revenue and perused the case records including the written submissions and the case laws filed on behalf of the appellant. 6. The perusal of a case records shows for the identical issue, for the period August, 2011 to February, 2012 and April 2012 to July, 2017; August, 2012 to April, 2012, April 2013 to May, 2013 to June, 2014, three Show cause notices were issued to the appellants and those were adjudicated on 9th July, 2015 by a common adjudication order. Therefore, it is not correct to say that there is any suppression on the part of the appellant as the procedure adopted by the appellant was well within the knowledge of the Revenue way back since the year 2011 and accordingly extended ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mitted all the documents/information as and when the same was asked by the department, starting from the year 2011 onwards. On merits also the issue is about the adjustment of excess duty paid in previous month with the duty liability of the subsequent month. The amount have been paid by the appellant in the month of March i.e. the ending of the financial year on the entire spare parts cleared to their service agent as abundant precaution. This excess payment have not been controverted anywhere. If this is the scenario and if the same has not been specifically prohibited by the statue, I find no reason why the duty cannot be adjusted for the subsequent month. In the matter of South Indian Petrochem (supra) as cited by learned Chartered Acco ..... X X X X Extracts X X X X X X X X Extracts X X X X
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