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TMI Blog2023 (10) TMI 675X X X X Extracts X X X X X X X X Extracts X X X X ..... ceived in the factory and that the credit availableshall be of the duties specified therein and barring the exclusions mentioned therein in the Rules and following the conditions mentioned therein. It is found that there is no condition, whatsoever, that the capital goods should necessarily be purchased or owned by the assessee. The stress of the Rules is on the use of inputs and capital goods rather than the ownership. It is on record that the appellants have reversed the credit availed, whenever such moulds and dyes have been returned back to the OEMs, in terms of Rule 5 of CENVAT Credit Rules. The crux of the argument of the Department is that the appellants have not purchased the capital goods and as such are not the owners of the ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... L) Shri Naveen Mullick, Advocate for the Appellant Shri Nikhil Kumar Singh, Authorised Representative for the Respondent ORDER M/s Vimal Moulders, the appellants, is engaged in the manufacture of plastic moulded parts for Original Equipment Manufacturers (OEMs) like M/s LG Electronics, M/s Samsung India Electronics and M/s Subros. The appellants receive moulds from the respective manufacturers and have availed CENVAT credit on the same. On conduct of an audit, the Department objected to the availment of CENVAT credit on the grounds that the moulds and dyes were not purchased by the appellants but were simply supplied by the OEMs along with the credit thereof. A show-cause notice dated 12.08.2010 was issued demanding re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ciples of natural justice; learned Counsel further submits that they have been filing ER-1 Returns regularly and audit has been conducted from time to time; therefore, the appellants cannot be alleged to have suppressed any material fact before the Department so as to necessitate the invocation of extended period; extended period cannot be invoked and the entire demand is time barred. 4. Shri Nikhil Kumar Singh, learned Authorized Representative for the Department reiterates the findings of the impugned order and submits that ample opportunities were afforded to the appellants; audit was conducted on 07/08-12-2009 and show-cause notice was issued in August 2010 and adjudication order was passed in the year 2011. Learned Authorized Repres ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lableshall be of the duties specified therein and barring the exclusions mentioned therein in the Rules and following the conditions mentioned therein. We find that there is no condition, whatsoever, that the capital goods should necessarily be purchased or owned by the assessee. The stress of the Rules is on the use of inputs and capital goods rather than the ownership. It is on record that the appellants have reversed the credit availed, whenever such moulds and dyes have been returned back to the OEMs, in terms of Rule 5 of CENVAT Credit Rules which states as under: (5) When inputs or capital goods, on which CENVAT credit has been taken, are removed as such from the factory, or premises of the provider of output service, the manufactu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stice. We find that the appellants have demonstrated that opportunity of being heard has not been given to them even though; they have approached the office of the Commissioner on the dates on which personal hearing was fixed. We also find that no cognizance of the Letter dated 13.10.2011 has been taken by the Adjudicating Authority. There is nothing on record to show whether that letter has been replied or otherwise. The learned Counsel for the appellants also submits that the show-cause notice is time-barred. Considering the facts of the case and particularly, the fact that the appellants have been filing ER-1 Returns regularly, we find that there is merit in the argument of the learned Counsel for the appellant. However, as we hold that ..... X X X X Extracts X X X X X X X X Extracts X X X X
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