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TMI Blog2024 (6) TMI 176X X X X Extracts X X X X X X X X Extracts X X X X ..... fide intent to avail inadmissible credit. Therefore, I find no reason to interfere in the findings of adjudicating authority in this regard." 2.1 The Appellant is engaged in manufacture of a rear view mirror and were also availing Cenvat credit on various inputs, capital goods, input services in terms of Cenvat Credit Rules, 2004. 2.2 During the course of audit it was observed that the Appellant had taken credit on service tax paid on commission charges paid to M/s Chopra Properties for purchase of land from Noida Authority for setting up a new manufacturing unit. 2.3 As Revenue was of the opinion that this credit is not admissible, a show cause notice dated 11.02.2016 was issued to the Appellant asking them to show cause as to why:- "a. The said Credit of Rs.6,79,800/- (Service Tax+Ed. Cess+ HS. Ed. Cess) (Rupees Six Lakhs Seventy Nine Thousand Eight Hundred only) should not be disallowed and recovered from them under Rule 14 of the CENVAT Credit Rules, 2004 read with Section 11A(4) of the Central Excise Act, 2004. b. Interest at appropriate rates on the said amount should not be charged and recovered from them under Rule 14 of the CENVAT Credit Rules, 2004 read wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under Section 11A(4) of the Central Excise Act, 1944 stating that Appellant had willfully suppressed the facts. * Extended period of limitation under Section 11A(4) of Central Excise Act cannot be invoked in the present case as * Appellant had completely disclosed the entire facts in their ER-1 Return as per the format provided. * all information was available on record and the show cause notice and confirmation of demand thereafter is based on information provided by them. * Demand could not be upheld which is made by invoking the extended period of limitation. Reliance is placed on the decisions of * Surya Vistacom Pvt. Ltd. [2022 (66) G.S.T.L. 290 (Cal.)]. * Meghmani Dyes & Intermediates Ltd. [2013 (288) E.L.T. 514 (Guj)]. * LG Electronics India Pvt. Ltd. [2024 (4) TMI 533]. * BCH Electric Ltd. [2013 (31) S.T.R.68 (Tri.-Del.)]. * Apex Electricals Pvt. Ltd. [1992 (61) E.L.T. 413 (Guj.)]. * Cadila Pharmaceutical Ltd. [2017 (349) E.L.T. 694 (Guj.)]. * Prolite Engineering Co. [1995 (75) E.L.T. 257 (Guj.)]. * As there is no positive act on the part of the Appellant to suppress any information extended period could not have been held in following cases:- * P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 143492 71691 2583389 51670 25843 4.3 Details of credit taken in respect of input services during the period includes the Cenvat credit taken in respect of deposit as is evident from the chart available on the page 83-85 of the appeal paper book. Relevant extract is reproduced as follows:- DETAILS OF SERVICE TAX CREDIT TAKEN FOR THE MONTH MAR-2014 Date Description Su code Particulars Bill No. Bill Date Service Tax Ed Cess Sec Cess 28-02-14 AP140228116309 D063 DHL Express (I) Pvt. Ltd. DEL781146 21-02-14 7,515 150 75 X X X X X X X X X X X X X X X X X X X X X X X X X X X 31-03-14 AP140331117783 C204 Chopra properties Other services 31-03-14 660,000 13,200 6,600 x x x x x x x x X x x x x x x x X Total 25,83,389 51,670 25,843 4.4 From the above it is evident that credit of Rs.6,79,800 (Service Tax Rs.6,60,000+ Edu Cess Rs.13,200/- + SHE Cess Rs.6,600/-) is included in the amount of Rs.26,60,902/- (Service Tax Rs.25,83,389/-+ Edu Cess Rs.51,670/- + SHE Cess Rs.25,843/-) declared as input services credit in the ER-1 return filed by the Appellant. 4.5 Appellant have made the declaration ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ents (supra), the Apex Court has held that extended period of five years was applicable only when something positive other than any inaction or failure on the part of the manufacturer or conscious or deliberate withholding of information when the manufacturer knew otherwise, is established. When the department had full knowledge about the facts and the manufacturers' action or inaction is based on their belief that they were required or not required to carry out such action or inaction, the period beyond six months (now one year) could not be made applicable. In the present case, it is not the case of the department that information that was otherwise required to be supplied to the department was knowingly suppressed or concealed from the department, nor is it the case of the department that information which was supplied by the assessees was in any manner incorrect or inaccurate. We cannot ignore or overlook the clear and unambiguous findings arrived at by the CESTAT with regard to the issue of limitation. The CESTAT, upon perusal of record i.e. the Returns, Declarations, etc., has concluded that no evidence had been brought on record to show that the Returns/Documents/Declaration ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hifts on the assessee once the department is able to produce material to show that the appellant is guilty of any of those situations visualized in the Section." 40. We shall also look into the judgments which have been relied upon by Mr. Dave appearing for the assessees. 41. In the case of Jindal Aluminium Ltd. (supra), the Division Bench of Karnataka High Court, in paragraphs 9 and 11 of the judgment, held as under : "9. In respect of the second point it is submitted that the documents which was recovered from the transporter were in respect of the excisable goods on which the duty was clandestinely evade. Firstly, we may observe that the question as to whether there is evasion of duty is basically a question of fact. It is not the case of the revenue that the order passed by the Collector or the Tribunal is perverse. No question is framed on that point. 11. After a finding of fact is recorded by the Tribunal after due consideration of the evidence before it, this Court will not interfere in its jurisdiction under Section 35G. The finding based on inferences drawn from the facts of the case is purely a question of fact. Even if the finding is recorded without any suppo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts referred to above are plain and clear. To make the demand for duty sustainable beyond the period of six months and upto a period of five years in view of the proviso to Section 11A of the Act, the Revenue is obliged to establish by cogent evidence that the duty of excise has not been levied or paid or short-levied or short-paid or erroneously refunded by reasons of either fraud or collusion or wilful mis-statement or suppression of facts or contravention of any provision of the Act or rules made thereunder, with intent to evade payment of duty." 4.7 In case of L.G. Electronics India Pvt. Ltd. this Bench has held as follows:- "4.10 The show cause notice has been issued invoking the extended period of limitation alleging that the appellant had not produced the copy of agreement with the foreign service provider and the relevant documents to audit at the time of audit. Though these documents were in existence and were made available to revenue authorities even before the issuance of show cause notice. As all the information which was necessary to determine eligibility under Notification No.18/2009-ST was available with the Revenue and the prescribed Return/Form was filed by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oviso to Section 11A of the Act accompanied by very strong words as 'fraud' or "collusion" and, therefore, has to be construed strictly. Mere omission to give correct information is not suppression of facts unless it was deliberate to stop the payment of duty. Suppression means failure to disclose full information with the intent to evade payment of duty. When the facts are known to both the parties, omission by one party to do what he might have done would not render it suppression. When the Revenue invokes the extended period of limitation under Section 11A the burden is cast upon it to prove suppression of fact. An incorrect statement cannot be equated with a willful misstatement. The latter implies making of an incorrect statement with the knowledge that the statement was not correct." 4.13 Further in case of Accurate Chemical Industries [2014 (310) ELT 441 (ALL)] Hon'ble Allahabad High Court has held as follows: "5. Admittedly, a show cause notice was issued on 16 August 2007 beyond the prescribed period of one year but the Revenue sought to invoke the extended period of limitation under the proviso to Section 11A(1) of the Act. The Tribunal observed that during the period ..... X X X X Extracts X X X X X X X X Extracts X X X X
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