Home Case Index All Cases Central Excise Central Excise + AT Central Excise - 2016 (5) TMI AT This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2016 (5) TMI 1239 - AT - Central ExciseEligibility of Cenvat credit - received material from HMIL and had paid duty which was indicated in the invoice - took credit based on the proper invoice issued by HMIL - HMIL paid the said duty and the goods were cleared under the cover of the said invoice - Held that:- the appellant’s contention is that there is nothing on record to show that the assessment of HMIL has been questioned by their jurisdictional officers, it would not be proper for any other officer to comment on the said payment has not been stated to be wrong or an erroneous proposition of law by the Revenue and therefore accepted. Therefore, by applying the decision of Hon'ble Supreme Court in the case of CCE Vs. MDS Switchgear Ltd. [2008 (8) TMI 37 - SUPREME COURT], the impugned order is liable to be set aside. It is found from the original authority's order that he is not able to ascertain the correct amount of credit taken by HMIL and the correct amount which is required to be reversed by HMIL, when that is the position, it is not known as to how he can come to a conclusion that the appellant is not eligible to take credit of the amount mentioned in the invoice. As rightly pointed out by the appellant that the jurisdictional officers of HMIL have not disputed the duty paid and the alleged excess payment has not been granted as refund. Therefore, both the lower authorities have erred in denying the credit to the appellant. Period of limitation - Invokation of proviso to Section 11A(1) of the Central Excise Act, 1944 - appellant availed the credit based on the duty amount paid by HMI as mentioned in the invoice - Held that:- when there is no dispute with regard to the payment of duty by HMIL, the same cannot be denied to the appellant. The instant case pertains to a situation where there is an excess payment of duty. Extended period can be invoked only when there is an intentional failure to pay duty which is not the case here. The appeal succeeds on limitation also as no credit in excess of the amount mentioned in the invoice was taken by them. - Decided in favour of appellant
|