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TMI Blog2022 (9) TMI 1282X X X X Extracts X X X X X X X X Extracts X X X X ..... eversal of credit along with interest amounts to a situation, which is akin to as if the assessee had never availed such credit at the first place. Also, Hon ble Calcutta High Court in the case of COMMISSIONER OF SERVICE TAX-1, KOLKATA VERSUS M/S. SURYA VISTACOM PRIVATE LIMITED [ 2022 (7) TMI 719 - CALCUTTA HIGH COURT] has held that if according to the adjudicating authority, the assesse did not abide by the provisions of Rule 6(3) of the Cenvat Credit Rules, 2004, it was open to such adjudicating authority to reject the assessee s claim as regards the disputed Cenvat Credit and it could not mechanically invoke the 6% Rule on the assesse. The demand cannot sustain and is accordingly set aside - appeal allowed - decided in favor of appellant. - Excise Appeal No.79584 of 2018 - FINAL ORDER NO.75531/2022 - Dated:- 27-9-2022 - MR. P.K.CHOUDHARY, MEMBER (JUDICIAL) Shri S.P.Majumder, Advocate for the appellant Shri A.Roy, Authorized Representative for the Respondent ORDER The Appellant, M/s Aurum Pharmachem Private Limited, is engaged in the manufacture of dutiable final products, Paint Driers of various types, namely, Cobalt Octoate, Lead Octoate, Zinc O ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Credit Rules, 2004 read with proviso of Sub-section (c) of Section 11AC of the Central Excise Act, 1944. 2.4 On appeal, the Ld.Commissioner (Appeals) rejected the appeal before him and upheld the adjudication order. Hence, the present appeal before the Tribunal. 3.1 The Ld.Advocate appearing on behalf of the Appellant, vehemently argued that the Adjudicating Authority erred in holding that the claim of the Appellant about reversal of entire amount of input service credit along with interest and proportionate penalty, could not be corroborated due to absence of relied upon documents. It is his submission that in each statutorily prescribed ER-1 Return, the amount of credits taken whether input credit or input service credit or capital goods credit, are mentioned. He further submitted that ER-1 Return shows the quantity and value of dutiable final products and exempted final product manufactured and cleared in the respective month and also the amount of duty paid by utilizing cenvat credit account and by debiting PLA respectively. The copies of corresponding ER-1 Returns were submitted before the adjudicating authority and from the said Returns, the amount of credit taken in ea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ltd. Vs. CCE ST (2022-TIOL- 312-CESTAT-AHM). 3.5 The Ld.Advocate further submitted on limitation and also drew the attention of the Bench that none of the conditions precedent for invoking the extended period of limitation as provided under Section 11A (4) of the Act existed or was satisfied in the present case. He further contended that the entire case has been made out on the basis of information available in the statutory books of accounts and the very basis of show-cause notice is audit objection meaning thereby that the entire demand was raised on the basis of information found available in statutory books of the assessee. In support of his contentions, he relied upon the following decisions : - (i) Aditya College of Competitive Exam Vs. CCE (2009-TIOL- 2216-CESTAT-Bang. = 2009 (16) STR 154 (Tri.-Bang.) ; (ii) MSP Sponge Iron Ltd. Vs. Commissioner of CGST Central Excise : 2022-TIOL-610-CESTAT-KOL ; (iii) M/s Rathi Steel and Power Ltd. Vs. Commissioner of CGST Excise : 2022-TIOL-684-CESTAT-KOL ; (iv) Commissioner of Service Tax I, Kolkata Vs. M/s Surya Vistacom Pvt. Ltd. : 2022 TIOL- 1005-HC-Kol-CX ; (v) CCE Vs. M/s Hindustan Cables Ltd. : 2022-TIOL-872 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ave perused the show cause notice issued by the adjudicating authority and we found that there is no specific allegation against the assessee of any deliberate suppression or misstatement with an intent to evade taxes.2021-TIOL-405-CESTAT-KOLCEXA/11/2022 At this juncture, it will be beneficial to take note of the decision of the Hon'ble Supreme Court in Uniworth Textiles Ltd. vs. Commissioner of Central Excise, Raipur2 wherein the Hon'ble Supreme Court held that every non-payment/non-levy of duty does not attract extended period and there must be deliberate default. Further, it was held that the conclusion that mere non-payment of duties is not equivalent to collusion or wilful misstatement or suppression of fact is untenable as the Act contemplates a positive action which betrays a negative intent of wilful default. Further, in Pushpam Pharmaceuticals Co. vs. CCE3 it was held that misstatement or suppression of fact must be wilful since the word 'wilful' precedes the words 'misstatement or suppression of fact' which means with an intent to evade duty. Bearing in mind the above legal principle, if we examine the allegations in the show cause notice dated 17t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ichever is more in terms of Explanation-1 as contained in Rule 6(3A). This factual finding could not be dislodged by the revenue before us and we agree with the tribunal on the said aspect. That apart, as pointed out by the learned Advocate appearing for the respondent/assessee, a new rule has been introduced namely, sub-rule 3(aa) in Rule 6 which came into force w.e.f. 1st March, 2016 which states that where a manufacturer or provider of output services has failed to exercise the above, under sub-rule 3 and follow the procedure provided under sub-Rule 3(a),the Central Excise Officer, competent to adjudicate the case, based on amount of Cenvat Credit involved, may allow such manufacturer or provider or output CEXA/11/2022service to follow the procedure and pay the amount referred to in Clause 2(i) of sub-Rule (3) with interest calculated at the rate of 15% per annum from the date of payment of amount for each of the months till the date of pay meant thereof. The adjudicating authority has not invoked the said rule. That apart, what is important to note is that the amount of legible Cenvat credit to the assessee was Rs.41,17,269/-whereas the demand which was impugned before the tri ..... X X X X Extracts X X X X X X X X Extracts X X X X
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