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2014 (12) TMI 1086 - AT - Central ExciseDenial of CENVAT Credit - Invocation of extended period of limitation - Suppression of facts - Malafide intention - mere procedural violations - whether extended period is invokable for mere suppression on the part of the appellant or the suppression should be with an ‘intention to evade’ payment of duty - Held that:- So far as fraud and collusion are concerned, it is evident that the requisite intent, i.e., intent to evade duty is built into these very words. So far as mis-statement or suppression of facts are concerned, they are clearly qualified by the word ‘wilful’ preceding the words ‘mis-statement or suppression of facts which means with intent to evade duty. The next set of words ‘contravention of any of the provisions of this Act or Rules’ are again qualified by the immediately following words ‘with intent to evade payment of duty’. It is, therefore, not correct to say that there can be a suppression or mis-statement of fact, which is not wilful and yet constitutes a permissible ground for the purpose of the proviso to Section 11A. Mis-statement or suppression of fact must be wilful. Words ‘suppression of facts’, used in Rule 57I of the Central Excise Rules, 1944 are in the company of words like collusion and wilful mis-statement and will have to be understood to mean ‘with intent to evade payment of duty’. The observations made by the Adjudicating authority that ‘no intention to evade’ is required for invoking extended period of 5 years, can not thus be appreciated as the correct interpretation of law. Though there is no dispute that provisions of Section 11A of the Central Excise Act, 1944 are independent of recovery machinery under Rule 57-I of the Central Excise Rules, 1944, but the ratio of the words ‘suppression of facts’ and ‘wilful’ as interpreted by the Apex Court will also be applicable to the recovery provisions of Rule 57-I of the Central Excise Rules, 1944. - Decision in the case of Pushpam Pharmaceuticals Company vs. CCE, Bombay [1995 (3) TMI 100 - SUPREME COURT OF INDIA] followed. Credit was admissible to the appellant but for not filing the required/ proper declaration. Appellant has correctly relied upon the case laws mentioned in Para 2.1 above to the extent that for mere procedural violations CENVAT credit cannot be denied. Though in the present proceedings appellant is not agitating the issue of admissibility of credit but there is no evidence on record that there was any deliberate act on the part of the appellant to avail inadmissible credit. In our opinion extended period of 5 years cannot be invoked in these proceedings for not following the procedure properly when otherwise the credit was admissible. - Decided in favour of assessee.
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