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TMI Blog2024 (1) TMI 1397X X X X Extracts X X X X X X X X Extracts X X X X ..... ce Act 1994 the Finance Act is sought to be assailed in this appeal that has been filed by Air India Ltd. 2. The main submission advanced by Shri B.L. Narasimhan, learned counsel for the appellant assisted by Shri Kunal Agarwal is that in the facts and circumstances of the case the invocation of the extended period of limitation in the show cause notice could not have been confirmed by the Commissioner in the absence of allegation pointing specifically towards any act or omission or commission resulting in evasion of payment of service tax. In support of this contention, the learned counsel relied upon the judgement of Supreme Court in Collector of Central Excise vs. H.M.M. Limited 1995 (76) ELT 497 (SC) , which judgment was subsequently f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the books of account, records and supporting documents including payment vouchers had to be kept at the branch/regional offices to meet the requirement of statutory and govt Audit. xxxxxxxxx 6. Whereas the assessee failed to submit supporting documents viz, copy of input invoice proofs of payment of service tax along with copy of ST 3 return to substantiate their claim. Thus it appears that the Cenvat credit amounting to Rs.10,75,77,445/- has been wrongly availed by the assessee during the period 2007-10 and is recoverable from them. xxxxx 9. Therefore, the assessee is required to maintain documents and records mentioned under Rule 9(1) (e) to avail cenvat credit on input services. As the assessee has not maintained the pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... porting documents namely, copy of the input invoice towards proofs of payment of service tax with ST-3 Returns were not enclosed by the appellant to substantiate its claim. It is for this reason that the show cause notice alleges that the appellant wrongly availed CENVAT Credit and it appears to be recoverable from the appellant under rule 14 of the CENVAT Credit Rules, 2004 read with section 73 (1) of the Finance Act. The show cause notice further mentions that this fact would not have come to the notice of the Department if the audit had not been conducted. 7. The contention of the learned counsel appearing for the appellant is that the show cause notice does not make out a case for invocation of the extended period of limitation. Learne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lty of wilful mis-statement or suppression of fact. In the absence of such averments in the show cause notice it is difficult to understand how the Revenue could sustain the notice under the proviso to Section 11A(1) of the Act. The Additional Collector while conceding that the notice had been issued after the period of six months prescribed in Section 11A(1) of the Act had proceeded to observe that there was wilful action of withholding of vital information apparently for evasion of excise duty due on this waste/by-product but counsel for the assessee contended that in the absence of any such allegation in the show cause notice the assessee was not put to notice regarding the specific allegation under the proviso to that sub-section. The m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o make a declaration in regard to waste or by-product) an intention to evade the payment of duty. The Additional Collector did not specifically deal with this contention of the assessee but merely drew the inference that since the classification list did not make any mention in regard to this waste product it could be inferred that the assessee had apparently tried to evade the payment of excise duty." (emphasis supplied) 9. The aforesaid decision of the Supreme Court was followed by Supreme Court in Raj Bhadur Narain Singh Sugar Mills Ltd. and Kaur & Singh. 10. It would be seen from the aforesaid judgment of the Supreme Court that in order to attract the proviso to section 11A of Central Excises and Salt Act 1944, which is pari mater ..... X X X X Extracts X X X X X X X X Extracts X X X X
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