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2015 (9) TMI 1496 - CESTAT NEW DELHIDenial of CENVAT credit - job-work - the appellant avails the benefit of Notification dated 1.3.2006 for supply of goods without payment of duty to the job worker, it had exercised the option for payment of an amount equal to 5% of the value of exempted goods cleared to the job work under Rule 6(3)(I) of the Cenvat Credit Rules 2004 - According to the Department, since the inputs supplied by the principal manufacturer are exclusively meant for manufacturing of the goods, the appellant is liable to pay the cenvat credit taken on those inputs in terms of explanation-II appended to Rule 6 of the Cenvat Credit Rules, 2004 - time bar. Held that: - It is an admitted fact on record that the appellant had paid the amount equal to 5% of value of exempted goods cleared by it on job work basis to the principal manufacturer, in terms of Notification No. 6/2006-CE dated 1.3.2006. Since such option has been exercised by the appellant suo-moto and due intimation regarding such payment has been filed before the Central Excise Department, in my opinion, the extended period of limitation cannot be invoked for confirmation of the demand, in terms of the proviso to section 11A of the Central Excise Act, 1944. Further, the issue regarding applicability of the explanation appended to sub-rule (3) of Rule 6 ibid was debatable, for which the officers of Central Excise Audit Wing have referred the matter to the Preventive Wing of the same Department for conducting necessary investigation. The said fact proves beyond any shadow of doubt that there is no element of mens-rea/suppression of facts with intent to avail fraudulent credit by the appellant. Therefore, I am of the considered view that the SCN issued on 6.9.2012, seeking confirmation of demand for the period from November 2010 to March 2011, is clearly barred by limitation of time. Accordingly, the impugned order is set aside and the appeal is allowed in favor of the appellant on the ground of limitation alone - However, it is apparent from the face of the record that the appellant is not disputing the payment of ₹ 19,49,774/- reversed in its cenvat account, in terms of Rule 6(3)(i) ibid. Thus, the benefit of the extended period of limitation shall not be available on reversal of such amount. The appellant has filed another appeal, which has been listed as appeal no. E/58540/2013. The issue involves refund of ₹ 10,09,175/-, which was deposited at the time of audit. The appellant submits that the proceedings initiated pursuant to the audit report has attained finality vide order dated 12.02.2014, and thus, the said amount is eligible for refund. I am of the view that the appellant is eligible for refund of ₹ 10,09,175/-. However, sanction of the said refund amount is subject to verification of the unjust enrichment aspect by the original authority. Appeal allowed - decided in favor of appellant-assessee.
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