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2018 (10) TMI 267 - HC - Central ExciseExtended period of Limitation - Benefit of reduced Penalty - invoking extended period of limitation under Section 11A of the Central Excise Act and imposition of penalty under Section 11AC when all relevant information were within the knowledge of the department from 02.12.2003? - Eligibility of availing Cenvat Credit when no return was filed. Held that:- The proviso comes into play only when suppression is established or stands admitted and it would differ from a case where fraud, etc., are merely alleged or is disputed by the assessee and therefore, the concept of knowledge cannot be read into the provisos because that would amount to rendering the term "relevant date" negatory and such interpretation is not permissible. The contention that once knowledge has been acquired by the department, there is no suppression and the ordinary statutory period of limitation prescribed under sub-section (1) of section 11 would be applicable was rejected as a fallacious argument inasmuch as once the suppression is admitted, merely because the department acquires knowledge of the irregularity, the suppression would not be obliterated. In the instant case, it has been established that there has been suppression, there has been clandestine removal of excisable goods without payment of excise duty, the assessee having collected excise duty from the customers did not remit it to the department and the assessee did not obtain registration from the department nor maintained any records and obtained registration under the provisions of the Act only on 16.05.2003. Thus, these facts would clearly establish that the extended period of limitation was invocable in the assessee's case. Also, the plea raised by the assessee that they should have been granted the opportunity to pay 25% is unacceptable. If the assessee had collected excise duty, he is bound to remit the duty to the department and cannot retain the same and then contend that due to financial difficulty, he could not remit the same and had remitted a portion of the same in instalments. The factual scenario in the instant case disentitles the assessee for any remedy. CENVAT Credit - it is submitted that the Adjudicating Authority has erroneously denied the Cenvat credit and the assessee was able to succeed only before the Appellate Authority - Held that:- The assessee did not file any return and did not maintain any records. Therefore, for reasons assigned by the original authority, the credit was rightly denied. However, the assessee has partially succeeded before the Appellate Authority and as against the said finding, the department has not filed an appeal - this can, in no way, advance the case of the assessee. Appeal dismissed - decided against assessee.
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