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2024 (4) TMI 626 - AT - Central ExciseCENVAT Credit - capital goods - Immovable Property or not - fabrication and setting up of entire paint shop - entire demand has been quantified on the basis of the figures taken from the books of accounts maintained by the appellant - suppression of facts or not - Extended period of Limitation- HELD THAT:- The department instead of analyzing whether these items fall under the category of capital goods and eligible for credit has analysed whether the paint shop as assembled at site is an excisable goods. The appellant has not availed credit on ‘paint shop’. They have availed credit on various machinery, parts, and components which have been used to set up paint shop. Some structural items falling under Chapter 73 have also been used for the fabrication and setting up of entire paint shop which is integral to carry out the activity of painting of cars. The department does not have a case that the items do not fall under 84, 85 of Central Excise Tariff Act 1985. In the case of M/s. HYUNDAI MOTOR INDIA LTD. VERSUS CCE & ST LTU CHENNAI AND VICA-VERSA [2015 (12) TMI 940 - CESTAT CHENNAI] the Tribunal considered the issue of availment of cenvat credit on items used for setting up paint shop and held that credit is eligible. In the case of M/S OMAX AUTO LIMITED VERSUS CCE, DELHI-III [2013 (8) TMI 301 - CESTAT NEW DELHI] it was held that structures used in paint complex which is an integral part of the manufacture of motor vehicles used in the fabrication of paint complex is eligible for credit. The denial of credit is on the basis of erroneous appreciation of facts and law. The issue on merits is answered in favor of assessee. Extended period of limitation - Suppression of facts or not - HELD THAT:- The demand has been raised on the basis of figures as reflected in the books of accounts maintained by the appellant. There is no positive act of suppression established by the department against the appellant. In the case of PUSHPAM PHARMACEUTICALS COMPANY VERSUS COLLECTOR OF C. EX., BOMBAY [1995 (3) TMI 100 - SUPREME COURT] the Hon’ble Supreme Court while considering the issue of invocation of extended period observed that when facts are known to both sides there is no ground to invoke the extended period - there is no ground to invoke the extended period. The SCN is time barred. The issue on limitation is answered in favour of the appellant. The impugned order is set aside - appeal allowed.
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