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TMI Blog2022 (8) TMI 492X X X X Extracts X X X X X X X X Extracts X X X X ..... reversed the proportionate cenvat credit which has been availed in the manufacture of exempted goods - Hon ble Supreme Court in the case of CHANDRAPUR MAGNET WIRES (P) LTD. VERSUS COLLECTOR OF C. EXCISE, NAGPUR [ 1995 (12) TMI 72 - SUPREME COURT] has held that the claim for exemption of duty on the disputed goods cannot be denied on the plea that the assessee has taken credit of the duty paid on the inputs used in manufacture of these goods. The impugned Order is not sustainable and the same is set aside - Appeal allowed - decided in favor of appellant. - Excise Appeal No.76135 of 2018 - FINAL ORDER NO. 75377/2022 - Dated:- 24-6-2022 - SHRI P.K.CHOUDHARY, MEMBER (JUDICIAL) Shri Jitin Singhal, Advocate for the Appellant (s) Shri S.Mukhopadhyay, Authorized Representative for the Respondent (s) ORDER The Appellant has filed the present Appeal assailing the impugned Order-in-Appeal dated 15.01.2018 passed by the Ld.Commissioner (Appeals), Siliguri. 2. The brief facts of the case are that the Appellant is engaged in the manufacture of Industrial Oxygen classifiable under Tariff Heading 28044090 having central excise duty liability @ 12% and Medical Oxyge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d period cannot be invoked if the demand is based on audit objection. The Appellant relied upon various case laws in support of his submissions. (ii) On the merits of the case, he submitted that demand of central excise duty is also not sustainable. He submitted that they have reversed the proportionate cenvat credit which has been availed for manufacture of exempted goods. He further submitted that it is a well settled law that when cenvat credit is reversed, it amounts to cenvat credit not been taken. He relied upon following judgements in support of his submissions: (a) Star Agri Warehousing and Collateral Management Ltd. Vs. CCE, Jaipur, 2021 (44) GSTL 271 (Tri-Del.) (b) CCE Vs. Precot Meridian Ltd., 2015 (325) ELT 234 (SC) (c) Chandrapur Magnet Wires (P) Ltd. Vs CCE, Nagpur, 1996 (81) ELT 3 (SC) 4. The learned Authorised Representative appearing on behalf of the Department reiterated the findings in the impugned order and prayed to dismiss the instant appeal being devoid of any merits. 5. Heard both sides and perused the appeal records. 6. I find that the entire case has been made out by the Department on the basis of ER-1 returns. There is no allegation i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e relevant date in the circumstances mentioned in the proviso, one of it being suppression of facts. The meaning of the word both in law and even otherwise is well known. In normal understanding it is not different that what is explained in various dictionaries unless of course the context in which it has been used indicates otherwise. A perusal of the proviso indicates that it has been used in company of such strong words as fraud, collusion or wilful default. In fact it is the mildest expression used in the proviso. Yet the surroundings in which it has been used it has to be construed strictly. It does not mean any omission. The act must be deliberate. In taxation, it can have only one meaning that the correct information was not disclosed deliberately to escape from payment of duty. Where facts are known to both the parties the omission by one to do what he might have done and not that he must have done, does not render it suppression. [Emphasis supplied] XXXXXXXXXXXXXXX 17 . In fact, the Act contemplates a positive action which betrays a negative intention of willful default. The same was held by Easland Combines, Coimbatore v. The Collector of Central Excise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en availed in the manufacture of exempted goods. This Tribunal in the case of Star Agri Warehousing and Collateral Management Ltd. Vs. CCE, Jaipur, (supra) has held as follow: 9 . We are also of the view that once the proportionate reversal of the Cenvat credit has taken place, that tantamount to not availing of the input services credit of the common inputs which are going into the exempted services. While holding this view we take shelter of the decision of the Hon ble Supreme Court in the case of Chandrapur Magnet Wires (P) Ltd. v. Collector of Central Excise, Nagpur 1996 (81) E.L.T. 3 (S.C.). 10 . We also take note of this Tribunal s decision on the same issue in case of M/s. The Oberoi Rajvilas v. Commissioner of Central Excise, Jaipur reported under 2018 (5) TMI 1715 - CESTAT New Delhi, the relevant extract of same are reproduced here below :- 9. From the above, we note that the appellant has followed the proportionate method for availment of credit on common input services. It cannot be said that the appellant has availed any credit on input services used in providing exempted service. The reversal of credit as above satisfies the requirement of non-ava ..... X X X X Extracts X X X X X X X X Extracts X X X X
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