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2016 (10) TMI 182 - CESTAT AHMEDABADAppropriation of amount - clearance of inputs 'as such' on payment of duty on the transaction value rather than reversing the Cenvat Credit availed on such Inputs - duty short paid - differential duty paid before issuance of SCN - Held that:- it is the contention of the appellant that the Dept., has not adjusted the excess payment made by them while discharging the duty on the transaction value. However, neither they have established the said claim of excess payment before the authorities below nor they have filed any refund claim in this regard. There cannot be any dispute on the principle that when the Input is cleared ‘as such’ Cenvat Credit availed on the Inputs is required to be reversed as per Rule 3(5) of Cenvat Credit Rules 2004. Therefore, the differential credit is recoverable from the appellant and there is no discrepancy in the order by the authority below. Invokation of extended period of limitation - imposition of penalty - Held that:- However, I find that the Appellant had cleared the inputs on payment of duty on the transaction value and the differential duty was discharged within one year of the initial payment by debiting their CENVAT account in Feb.2009. Also, there is no suppression of fact. Thus, the show cause notice issued after two years of payment for appropriation of the amount cannot lead to an inference that facts had been suppressed and longer period of limitation is attracted. In UOI Vs. Rajastan Spinning & Weaving Mills Ltd. [2009 (5) TMI 15 - SUPREME COURT OF INDIA], it is held that every short payment of duty cannot invite penalty under Section 11AC, in absence of any of the ingredients of Section 11AC of the Central Excise Act,1944. Therefore, penalty under the said provision cannot be sustained in the present case. - Decided partly in favour of appellant
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