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2019 (5) TMI 1403 - AT - Central ExciseCENVAT Credit - duty paying documents - time limitation - Credit taken on input services during the months of November 2014 and December 2014 of an amount of ₹ 21,29,851/- beyond the period of six months from the date of issue of invoices - HELD THAT:- The allegation in the show cause notice with respect to invocation of extended period of limitation is that the assessee has suppressed the fact that they have availed CENVAT Credit on the invoices in contravention to Rule 9(1) of CCR 2004 on the department inasmuch as they did not indicate so in their ER.1 returns. They have also not provided copies of the invoices along with returns. Thus, there was a suppression of fact and extended period of limitation is invoked. It is a well settled principle that to allege suppression, it must be shown that something which has to be disclosed by the assessee has not been disclosed. In this case, there is no requirement in the E.R 1 returns to give invoice wise details of CENVAT Credit availed. There is also no requirement of providing copies of invoices along with E.R 1 returns. Therefore, it cannot be held that the appellant had suppressed the facts from the department - Violation of rule 9(1) is established but there is no evidence of intent to evade. Therefore, the extended period of limitation cannot be invoked. There is no doubt that there was contravention of Rule 9(1) as it stood during the period but apart from the allegation that there was an intent, there is nothing in the entire show cause notice to show for support of this allegation of malafide intention. Therefore, in the show cause notice itself, I find that there is no ground to invoke the extended period of limitation. Imposition of penalty - HELD THAT:- Since the element necessary for invoking the extended period of limitation was absent in the show cause notice itself, no penalty can be imposed upon the appellant. Appeal dismissed - decided against appellant.
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