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2019 (7) TMI 1297 - AT - Central ExciseCENVAT Credit - input which was not used by it in the manufacture of any dutiable products - Rule 6 (1) of the CENVAT Credit Rules, 2004 - fact of wrongly availing CENVAT Credit came to light only during verification/audit in October 2015 - suppression of facts or not - extended period of limitation - penalty - HELD THAT:- The undisputed fact therefore remains that the allegation of wrong availment was detected only from the Books/records of the assessee; there is no whisper about finding the alleged irregularity not in the context of the Books/records of the assessee but otherwise and there is also no whisper about any independent enquiry yielding any result. Further also it is not the case of the Revenue nor is there any finding that there was an act of suppression by which the appellant intended to evade the tax/duty or successfully evaded the payment of duty. Albeit Show Cause Notice alleges contravention of Rule 6 (1), there is nothing beyond this; no whisper about suppression, fraud, etc., much less even intention to evade payment of duty, in the Show Cause Notice. In the case on hand, there is no dispute about the fact that the ER-1 return disclosed the availment of CENVAT Credit and even though it is filed under self-assessment system, the Officers are supposed to scrutinize the same. Just because the assessee had taken CENVAT Credit in respect of certain input services which according to the Revenue was not admissible, it cannot be concluded that such credit had been taken knowing very well that the same was inadmissible unless some evidence is brought on record. Penalties - HELD THAT:- The appellant, upon being pointed out, did reverse the above credit and duly reflected the same in their ER-1 return filed for the month of January 2016 - Section 11AC of the Central Excise Act, 1944 provides that where any duty of excise has not been levied or paid or has been short-levied or short-paid, etc., by reason of fraud, collusion, etc., with an intent to evade payment of duty, such person is liable to pay a penalty equal to the duty determined - As per the provision of Rule 15 (2) of the CENVAT Credit Rules, 2004, in a case where the CENVAT Credit has been taken and utilized wrongly by reason of fraud, suppression, etc., and in contravention of any of the provisions of the Central Excise Act or of the rules made thereunder with an intent to evade payment of duty, the manufacturer shall also be liable to pay penalty in terms of the provisions of Section 11AC of the Central Excise Act. Extended Period of Limitation - HELD THAT:- In the case on hand, the SCN issued without the specific allegation of suppression, fraud, etc., invoking the larger period of limitation cannot therefore sustain - The impugned order for the period from December 2012 to October 2014 cannot sustain and therefore, the same is set aside. Appeal allowed - decided in favor of appellant.
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