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2017 (6) TMI 1098 - AT - Central ExciseMODVAT credit - whether countervailing duty exempted by notification No.34 /97-Cus. debited in the DEPB Pass Book is eligible for modvat credit or otherwise? - Held that: - the issue has been decided against the assessee by the Larger Bench of this Tribunal in the case of Essar Steel Ltd. [2004 (8) TMI 123 - CESTAT, NEW DELHI] - the Cenvat Credit on the CVD debited in DEPB Passbook which is exempted under N/N. 34/97-Cus. is not admissible. Extended period of limitation - penalty u/s 11AC - Held that: - the issue was contentious and was referred to the Larger Bench and decided on 16.8.2004, whereas in the present case the period involved is August 2003 to November 2003, the show cause notice was issued on 9.9.2004. In this fact the suppression of fact cannot be attributed to the appellant, accordingly the proviso of Section 11A(1) cannot be invoked - the extended period is not sustainable and demand for the normal period of one year as provided under Section 11A(1) of the Act shall sustain - For the same reason that there is no suppression of fact on the part of the appellant the penalty under Section 11AC is also not imposable accordingly, the penalty imposed under Section 11AC is set aside. Appeal allowed - decided partly in favor of appellant.
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