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2013 (11) TMI 850 - AT - Central ExciseExtended period of Limitation – removal of input as such under the guise of manufacture charging duty of excise - demand under section 11D - Held that:- The assesse has made out a case on limitation - It is to be noted that the said ER-1 specifically indicates that invoices under which the goods were cleared and remarks also talks about clearance of moulds on sales - the extended period of limitation cannot be invoked are also fortified from the statements of Director recorded on the date of visit of factory premises by the Preventive Officers - There cannot be any dispute or motive attached to the said payment of Central Excise duty by the appellant on the mould which were billed to their clients - The findings recorded by both the lower authorities on limitation seems to be only the presumptions and not on the factual matrix as the first appellate authority has recorded that contention of the appellant is quite astute and pre-meditated one. Period of limitation for demand under section 11D - revenue relied upon the decision in the case of CCE, Ahmedabad-II vs. Inductotherm (I) Pvt. [2012 (12) TMI 856 - GUJARAT HIGH COURT] that period of limitation is not applicable under section 11D - held that:- As regards the submissions of learned Additional Commissioner (AR) that the show cause notice, even if it is indicating wrong Section or Rule, does not preclude from demanding duty under the correct provisions, seems to be misplaced, inasmuch as the provisions of Section 11D are different provisions and needs to be invoked in a situation where it demands whereas, in the case in hand, it is very clear that the Revenue authorities invoked the provisions of Rule 14 of the Cenvat Credit Rules, 2004 read with Section 11A of the Central Excise Act, 1944, which in my view cannot be sustained due to the fact that appellants have made out a case on limitation. - Decided in favor of assessee.
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