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2014 (1) TMI 1474 - HC - Central ExcisePenalty u/s 11AC - Availment of CENVAT Credit of CVD which was paid through DEPB - Invocation of extended period of limitation - Whether on the facts and in the circumstances of the case the CESTAT was justified in holding that although on merits the Respondent shall not succeed following Apex Court's decision in the case of Commissioner of Central Excise Vs. Sunwin Technosolution P. Ltd. reported in [2010 (9) TMI 71 - SUPREME COURT OF INDIA], the appeal filed by the Respondent only succeeds only on the point of time bar and not on merit - Held that:- Tribunal has given absolutely no consideration either to the reasons indicated in the order of the Additional Commissioner while confirming the duty demand or to those contained in the order of the Commissioner (Appeals). Both these orders take note of the fact that the ER-1 Returns and Cenvat Credit Returns submitted by the assessee did not disclose or reflect that the additional customs duty had been paid through DEPB adjustments, nor did the returns show that the Bills of Entry were submitted to the department. Moreover, it has been found that the payment of additional customs duty through DEPB adjustments was not incorporated in any of the returns and it was only in the course of audit that it was found that the additional customs duty had not been paid in cash. It was on this basis that the extended period of limitation was sought to be invoked. If the Tribunal had to reverse this view regarding invocation of the extended period of limitation, it was necessary for it to indicate some reasons why the factual findings contained in the order of the Additional Commissioner and the Commissioner (Appeals) were being overruled. There is absolutely no reasoning on that aspect - Therefore, proceedings should be restored back to the file of the Tribunal for a fresh consideration - Decided in favour of Revenue.
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