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2013 (3) TMI 44 - CESTAT KOLKATAInadmissible Cenvat Credit and Education Cess - SCN issued invoking extended period of limitation - confirmation of demand and equivalent penalty under Section 11AC - Held that:- Admittedly the credit availed by the assessee was reflected in the monthly returns. If there is no column in the monthly return to show the nature of service on which the credit was availed, the assessee cannot be blamed for not disclosing the said fact. For invoking the longer period of limitation, there has to be a suppression or mis-statement with an intent to evade payment of duty. When the respondents have reflected the amount of credit availed by them in their monthly returns, it cannot be said that there was any positive act of suppression on mis-statement on their part. The respondent had availed cenvat credit on various input services on the bonafide belief that the same are admissible to them under the definition of inputs services contained in Rule 2(l) of Cenvat Credit Rules, 2004 and declared the quantum of cenvat credit in the ER I Returns. The respondent disputed the allegation of suppression and the same is neither admitted nor established. Once ER-I Return is filed, even though it is filed under self-assessment system, the officers are supposed to scrutinize the same. Just because the respondent had taken Cenvat credit in respect of certain input services, which according to the Department was not admissible to them, it cannot be concluded that the credit had been taken knowing very well that the same was not admissible, unless there is some evidence in this regard. Hence, the principle of law laid down in Neminath Fabrics Pvt. Ltd. case (2010 (4) TMI 631 - GUJARAT HIGH COURT), is not applicable to the facts of the present case - in favour of assessee.
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