TMI Blog2014 (4) TMI 182X X X X Extracts X X X X X X X X Extracts X X X X ..... input invoices with cenvat credit account. Hon’ble Supreme Court in the case of C.C.E. vs. Mehta & Compan 2011 (264) ELT 481 has held that for the purpose of computation of relevant date for invoking extended period cause of action is date of knowledge. Accordingly, Hon’ble Apex Court has held that limitation of five year is to be computed from the date of knowledge to the department. However, in this case the assessee had never informed the department & even their invoice were camouflaged. The invoices did not contain the details of credit available to the Noticee. The said invoice only indicate the total amount of duty paid on DTA clearances - there is no column in the ER - 1 return requiring the assessee to show all the above detail. In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... them culminating in passing of the impugned order confirming duty demand and imposition of penalty. 3. As regards the merits of the case we prima facie do not agree with the appellant that the education cess and higher education cess is to form part of countervailing CVD, the same has been the subject matter of various decisions and in the case of Jindal Drugs it was held that same would not form part of the excise duty. 4. The appellants have also challenged the impugned duty demand on the point of limitation by submitting that they have been filing regular return showing credit availed by them. As such there is no suppression or mala fide on their part justifying invocation of longer period of limitation. 5. The Commissioner while d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the said return, it would not be possible for the Revenue to find out that excess credit was being availed by them. However, we find that there is no column in the ER - 1 return requiring the assessee to show all the above detail. In the absence of requisition of law to disclose the above particulars non-disclosure would not reflect upon the mala fide of the appellant. As such we are prima facie of the view that demand is barred by limitation. We accordingly, direct the applicant to deposit Rs.10 lakhs which may fall within limitation period within six weeks from today. Subject to deposit of the above amount, pre-deposit of balance amount of duty and entire amount of penalty shall stand waived and its recovery stayed. To come up for ascer ..... X X X X Extracts X X X X X X X X Extracts X X X X
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