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TMI Blog2024 (12) TMI 271X X X X Extracts X X X X X X X X Extracts X X X X ..... s and capital goods and also paid the interest of Rs.8,84,585/- in cash and intimated the same to the Department vide their letters dated 13.06.2010 and 23.06.2010. The appellant also paid some amount as demanded by the Department along with interest which is not disputed. When the appellant paid the duty along with interest voluntarily and the same was not disputed by the Department, then as per the provisions of sub-section (2B) of Section 11A of the Central Excise Act, 1944, there was no necessity to issue the Show Cause Notice - Department has wrongly relied on the provisions of Rule 8(3A) of the Central Excise Rules, 2002, because Rule 8(3A) is applicable in cases where assessees are otherwise paying duty but for certain reasons commit default in not paying duty by due date. Also, the benefit of credit cannot be denied if subsequently duty is held to be payable on the final product. Time Limitation - suppression of facts or not - HELD THAT:- In the present case, there is no suppression on the part of the appellant as the appellant voluntarily informed the Department vide their letter dated 17.06.2010 and subsequently paid the duty along with interest also; whereas the Show Cau ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the alcohol liquor. The appellant did not pay duty on the pet bottles on bona fide belief that since the same are not being sold outside the factory but are being captively used for the filling of the alcoholic liquor, there is no requirement of payment of duty. Subsequently, they took a legal opinion on the issue and also consulted the other similarly situated manufacturers and came to know that they were required to pay duty on pet bottles, as the final product i.e. alcoholic liquor was not excisable. Thereafter, the appellant voluntarily vide their letter dated 17.06.2010 intimated the factual position to the Department and worked out their duty liability for the period from August, 2008 to May, 2010 and mentioned the same in this letter. The appellant had received certain capital goods for setting up of the pet bottle manufacturing plant on which Cenvat Credit was admissible to them. They had also been procuring inputs for the manufacture of pet bottles, which were also cenvatable. Thereafter, the appellant had worked out the amount of Cenvat Credit admissible to them and set-off the duty liability against the Cenvat Credit, which was also intimated in the said letter. From Jun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... made in the Show Cause Notice by invoking the extended period of limitation and by applying the provisions of Rule 8(3A) of the Central Excise Rules. Hence the present appeal. 3. Heard both the parties and perused the material on record. 4.1 The learned Counsel appearing on behalf of the appellant submits that the impugned order is not sustainable in law as the same has been passed without properly appreciating the facts and law and binding judicial precedents. 4.2 He further submits that the in the present case the appellant voluntarily came forward and wrote the letter dated 17.06.2010 stating that they are liable to pay the duty and after taking the Cenvat Credit on capital goods and inputs, they paid the differential duty and accordingly informed the Department. 4.3 He further submits that when the duty has been voluntarily paid, then as per provisions of Section 11A(2B), the Department is not justified to issue the Show Cause Notice. He also submits that it has been wrongly observed in the Show Cause Notice that the appellant was registered for manufacture of pet bottles on 16.11.2009. 4.4 He further submits that the Department invoked the provisions of Rule 8(3A) to demand th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... its adjustment was intimated vide letter dated 17.06.2010 whereas the Show Cause Notice was issued after 2 years on 09.10.2012 for the denial of credit, which is time barred. 4.8 He also submits that the imposition of penalty on Shri Sanjay Sharma, Authorized Signatory is also legally not sustainable because penalty under Rule 26 can only be imposed when there is a mens rea on the part of the employee. Further, the ingredients for imposition of penalty under Rule 26 do not exist in the present case. 5. On the other hand, the learned Authorized Representative for the Revenue reiterates the findings of the impugned order. He further submits that the benefit of sub-section (2B) of Section 11A of the Central Excise Act, 1944 was not given to the appellant because the appellant had suppressed the material fact with intent to evade payment of duty as they did not declare all the excisable goods including pet bottles manufactured by them in their factory. He further submits that the Adjudicating Authority has denied the benefit and imposed the penalty by relying upon the decision of Hon ble Apex Court in the case of UOI vs. Rajasthan Spinning Weaving Mills 2009 (238) ELT 3 (SC). He furth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eals were disposed of by observing low tax effect. 10. Further, we find that jurisdiction High Court of Punjab Haryana in the case of Sandley Industries vs. UOI 2015 (326) ELT 256 (P H) as well as the Hon ble Telangana High Court in the case of CCE vs. DRD Body Tech s India Pvt Ltd - 2022 (379) ELT 106 (Telangana) have also declared the Rule 8(3A) as ultra vires. 11. Further, we find that in view of the various decisions relied upon by the leaned Counsel for the appellant cited supra, it has been consistently held by the various courts that the benefit of credit cannot be denied if subsequently duty is held to be payable on the final product. 12. As regards the limitation, we find that the demand has been confirmed by invoking the extended period of limitation. According to us, in the present case, there is no suppression on the part of the appellant as the appellant voluntarily informed the Department vide their letter dated 17.06.2010 and subsequently paid the duty along with interest also; whereas the Show Cause Notice was issued after the expiry of more than two years which is time barred, because the ingredients for invoking the extended period of limitation do not exist in th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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