9911796707
TMI Blog2023 (12) TMI 1213X X X X Extracts X X X X X X X X Extracts X X X X ..... , ferro alloys etc. and they were availing the benefit of cenvat credit of duty paid on inputs/input services and capital goods under Cenvat Credit Rules, 2004. The department, during the course of audit, observed that the appellant have availed Cenvat Credit of duty paid on the services which were not received in the factory of the appellant but were received and used by their captive mines at Raigarh. Hence, availment of that credit was proposed as inadmissible to the appellant. Resultantly, a show cause notice bearing F.No.V(Ch.72)/15-17/Commr/RPR/2013/Adj dated 23.06.2015 was served upon the appellant proposing recovery of inadmissible Cenvat credit amounting to Rs.2,50,49,518/- (Two Crore Fifty Lakhs forty Nine Thousand Five Hundred E ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prior to issuance of impugned show cause notice which was issued on 23.06.2015, no question arose for imposition of penalty upon the appellant. The order under challenge is prayed to be set aside to that extent and the order appropriating the uncontested demand of Rs.46,21,582/- (already deposited/reversed) is prayed to be upheld. 5. While rebutting these submissions, learned Authorised Representative has mentioned that availament of credit by the appellant subsequent to 01.03.2011 could be revealed only after the audit of appellant records was conducted by the department. Attention has brought to the para 4.7 of the order under challenge wherein it has been categorically recorded that "Had it not been detected by the Department during aud ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esent case is merely a case of non discharge of tax liability, same cannot be equivalent to an intentional and positive act to evade payment of duty. The onus to prove such an act is upon the department. I do not observe any iota evidence proving any positive intentional act of the appellant to evade the duty. The appellant was regularly/claiming credit of duty paid on coal as their input i.e. coal was exempted till 1.3.2011. They continued availing said credit for subsequent few more months due to inadvertence or ignorance on the part of the appellant to take into consideration the amendment which came into effect on 1.3.2011 making coal as an excisable goods. Thus it is far a different situation than an intention to evade payment of duty. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . invoices as were maintained by them in regular course of business. The returns were admittedly been filed in time mentioning required details about availment of credit. There is nothing found on record which may be the proof for alleged suppression or misconduct. In a decision of Raj Bahadur Narayan (supra), Hon'ble Apex Court has held as follows:- 9. We have set out the relevant parts of the show cause notice. It speaks of an erroneously granted rebate. There is no mention in it of any collusion, wilful mis-statement or suppression of fact by the appellants for the purposes of availing of the larger period of five years for the issuance of a notice under Rule 10. The party to whom a show cause notice under Rule 10 is issued must be mad ..... X X X X Extracts X X X X X X X X Extracts X X X X
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