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2014 (4) TMI 182 - AT - Central ExciseWaiver of pre-deposit of duty - quantum of credit availed by the appellant in terms of the formula mentioned in Rule 3(7) (a) - Held that:- it is thus clear that the noticee has taken wrong cenvat credit in contravention of Cenvat Credit Rules, 2004. The noticee’s contention that they have declared the fact of taking of credit in the ER- returns and therefore, extended period is not invokable is not sustainable due to the fact that in the ER-I returns only consolidated figures of total credit taken on inputs is shown in the ER- 1 returns, invoice wise credit figures are not shown. This fact of wrong credit could only be detected by audit on scrutiny of 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 the absence of requisition of law to disclose the above particulars non-disclosure would not reflect upon the mala fide of the appellant - Conditional stay granted.
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