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2014 (6) TMI 306 - AT - Central ExciseDenial of Cenvat credit - Bar of limitation - Revenue entertained a view that the appellant has taken credit on the GP sheets, which were not capable of being used in the manufacture of their final product. As such, the Revenue further entertained a view that the appellant has sold the said procured GP sheets and has used the other procured HR/CR sheets in the manufacture of their final product. - Held that:- Impugned orders stands passed by the lower authorities in terms of the remand proceedings by the Hon’ble High Court vide their order dated 21.8.2008. Ongoing through the said order of the Hon’ble High Court, I find that the appeal does not stand disposed of by the Hon’ble High Court on the merits of the case, as is clear from the re-produced part of the order, it stand remitted to the lower authorities, preliminary on the ground that the entire material collected by the Revenue was not supplied to the assessee. There is virtually no evidence produced by the Revenue inasmuch as no buyer of the GP sheets stands identified nor is there any documentary evidence to establish that the procured GP sheets were cleared by the appellant in the market. Further, the Revenue has also miserably failed to show as to from where the appellants have procured the HR/CR sheets. Admittedly, without the use of the raw materials, may it be GP sheets or HR/CR sheets, their final product cannot be manufactured. In the absence of any evidence produced by the Revenue, the burden of countering and rebutting the evidence does not get shifted to the assessee. The number of search conducted on the google is not indicative of a process being commercially viable or not. On one hand the adjudicating authority has observed that de-galvanisation exists and on the other hand he is rejecting the appellants stand that there is no technical literature to show that de-galvanisation actually exists. He has also observed that the Show Cause Notice has referred to and relied upon circumstantial evidences to show that it is not possible to use GP sheets in the manufacture of tractor component. The Revenue establishing a fact that in the normal course GP sheets are not used for manufacture of OE parts, cannot lead to inevitable conclusion that the appellants have not used the said GP sheets in the manufacture of their final product. This is specifically so as the Revenue has failed to produce any evidence on record to establish that the said GP sheets stand cleared by the appellant in the open market and also to establish that the appellants have procured the HR/CR sheets from any other source. Extended period of limitation - Held that:- Admittedly the credit on the GP sheets was being availed by the appellant by reflecting the same in the statutory records. The requisite returns were being filed with the Revenue along with invoices, which indicated the description of the material as GP sheets. The said invoices were being regularly defaced by appellant’s jurisdictional Central Excise authorities, who never objected to the use of the GP sheets in the manufacture of OE parts. The RT-12 returns filed by the appellants were also being finally assessed. In such a scenario, I really fail to understand as to how any mis-statement or suppression etc. with an intent of mala fide can be attributed to the assessee so as to justifiably invoke the longer period of limitation - Bar of limitation - Decided in favour of assessee.
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