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TMI Blog2024 (4) TMI 222X X X X Extracts X X X X X X X X Extracts X X X X ..... th the conditions specified for such utilization, which required that the credit of EC and SHEC paid on inputs or capital goods received in the factory of manufacture of final products on or after the 1st day of March, 2015 could be utilized for the payment of duty of excise. The appellant cannot bifurcate the benefit, which was granted under the notification and avail the same but ignore the conditions specified for such utilization and hence, the invocation of the extended period of limitation was justified - It is settled law that a party cannot approbate and reprobate at the same time. Reference made to decision of the Apex Court in the case of SHYAM TELELINK LTD. NOW SISTEMA SHYAM TELESERVICES LTD. VERSUS UNION OF INDIA [ 2010 (10) TMI ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) TMI 1264 - DELHI HIGH COURT ] Ahmedabad Bench of the Tribunal in M/S FIELDMAN ENGINEERS PVT. LTD. VERSUS C.C.E. AND S.T. -RAJKOT [ 2018 (5) TMI 183 - CESTAT AHMEDABAD ] has specifically held that cenvat credit lying in balance in the account of Higher Secondary Education Cess and accumulated before 1.3.2015 can be used only for discharge of Cess as provided under the rules and cannot be used for discharging the liability of excise duty. The appellant though made a declaration that EC and SHEC is being used in payment of excise duty as per the notification no.12/2015 but that was an incomplete declaration with intent to mis-lead the Department. Once the appellant was utilizing the EC and SHEC towards payment of excise duty by virtue of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e that the appellant had utilized the credit of EC and SHEC in the Returns filed for May, 2015 while discharging the liability to pay the excise duty. During audit of records, it was noticed that the appellant had wrongly utilized the EC and SHEC for discharging the central excise duty as the goods and services for the same were received prior to 01.03.2015 in contravention of the provisions of Rule 3(7)(b) of Cenvat Credit Rules, 2004 (CCR, 2004) inserted by Notification No.12/2015-C.E. (NT) dated 30.04.2015. Show cause notice dated 29.05.2020 was issued to the appellant as to why an amount of Rs.1,97,346/- be not recovered from the appellant along with interest and penalty. On adjudication, vide order-in-original dated 12.01.2022, the pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Authorities below and submitted that the declaration made by the appellant in ER-I was not complete disclosure. As per the notification, on which the appellant had placed reliance required that the goods and services should have been received in the factory of manufacturer on or after 1.3.2015 was not complied with. The appellant had deliberately suppressed the facts with an intent to evade payment of duty as only an amount of Rs.60,485/- pertained to the period after 1.3.2015 out of the utilized amount of Rs.2,57,831/- and the balance amount of Rs.1,97,346/- pertained to the period prior to 1.3.2015, which was not admissible in terms of the notification and, therefore, the extended period of limitation under Section 11 A was rightly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Cess Amount of Rs.85,899/- used in payment of Excise (Basic) duty. 8. Considering the declaration above, I am of the opinion that it is a mis-leading declaration with an intent to evade payment of duty under the Act. The appellant consciously took the benefit of the notification no.12/2015 for the purpose of utilizing the EC and SHEC towards payment of excise duty, which otherwise was not permissible. But deliberately did not comply with the conditions specified for such utilization, which required that the credit of EC and SHEC paid on inputs or capital goods received in the factory of manufacture of final products on or after the 1st day of March, 2015 could be utilized for the payment of duty of excise. The appellant cannot bifurcate the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... treated as different and separate and cross utilization was never permitted. Though the decision of the Delhi High Court is under challenge before the Apex Court in SLP (C) No.020273/2018, however, no stay of the impugned order has been granted. Even prior to the decision in Cellular Operators Association of India (supra) Ahmedabad Bench of the Tribunal in Fieldman Engineers Ltd. Vs. Central Excise and ST, Rajkot 2018 (363) ELT 1067 (T-Ahmedabad) has specifically held that cenvat credit lying in balance in the account of Higher Secondary Education Cess and accumulated before 1.3.2015 can be used only for discharge of Cess as provided under the rules and cannot be used for discharging the liability of excise duty. 10. I may now consider the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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