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2020 (12) TMI 875 - CESTAT KOLKATAExcess availment of CENVAT credit - whether the appellant had taken excess CENVAT credit as arrived by the department, holding that it was paper transaction without or short receipt of raw materials? - Extended period of limitation - HELD THAT:- The value so arrived was compared with the value of raw material consumed as shown in the Balance Sheet of respective financial year. ER-1 return shows the amount of CENVAT credit taken on the quantity of raw material purchased and not on the quantity of raw material consumed. There is no provision for one to one correlation in CENVAT credit scheme - there is no other evidence on record like investigation from supplier of raw material, transporter or evidence of cash flow back or any inculpatory statement to substantiate that excess CENVAT credit taken was based on paper transaction i.e. without or short receipt of raw material against invoices. There is also no reference to any statutory provisions to justify/ support the said computation of excess CENVAT credit demanded in the instant case. Therefore the entire demand of excess CENVAT credit in the absence of any corroborative evidence is nothing but based on presumptions and is not permissible under the law. The Tribunal in the case of BEER BROS. VERSUS COMMISSIONER OF CENTRAL EXCISE, NEW DELHI-I [2015 (9) TMI 1439 - CESTAT NEW DELHI] held that charge of excess cenvat credit on the strength of balance sheet only is not sustainable. Extended period of limitation - HELD THAT:- In the present case, the entire demand is based on the audit objection and is alleged to have been detected only after the audit was conducted - The allegation of suppressing the facts from the department does not hold good in the event of periodic audit of the appellant as above. There is no other evidence in the impugned order to show that the appellant has willfully suppressed the facts from the department in order to evade payment of duty. As such extended period of limitation cannot be invoked in the present case. Appeal allowed - decided in favor of appellant.
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