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2019 (10) TMI 166 - AT - Central ExciseDemand u/s 11D - collection of reversal of CENVAT Credit from the customers - whether the assessee has unjustly benefited and enriched - Rule 6 of the CENVAT Credit Rules, 2004 - extended period of limitation - HELD THAT:- It has been admitted in the impugned order that the appellant has debited or reversed the duty at the end of the month which was collected from the principal manufacturers. In view of the reversal of the duty collected from the principal manufacturers, it is found that there is no amount that has been collected from the customers and retained by the appellant which would attract Section 11D of the Central Excise Act, 1944. In fact, invoking Section 11D(1A) of the Central Excise Act, 1944 in the facts and circumstances of the case is not justified when the appellants have collected only the amount of CENVAT admittedly debited, and the said amount is not retained by the appellant. Further, by following the ratio of the decisions in the case of M/S LAMICOAT INTERNATIONAL PVT. LTD., SHRI LOK NATH PRASAD GUPTA, DIRECTOR, SHRI OM PRAKASH GUPTA, DIRECTOR, SHRI DIPANKAR GHOSH, MANAGER VERSUS COMMISSIONER OF CENTRAL EXCISE, NOIDA [2015 (9) TMI 679 - CESTAT NEW DELHI] and in the case of COMMISSIONER OF CENTRAL EXCISE, BHOPAL VERSUS SS. CROP CARE LTD. [2010 (4) TMI 932 - CESTAT NEW DELHI], it is held that invoking Section 11D to demand the amount is not sustainable in law. Extended period of limitation - HELD THAT:- When the Revenue has not brought any evidence on record to show that there was suppression on the part of the appellant with intent to evade payment of duty, the appellant has shown invoice-wise detail of CENVAT in ER-1 returns and the copies of the invoices and ER-1 returns are also on record. Show-cause notice was issued on 6.12.2013 demanding an amount of ₹ 10,42,791/- for the period from April 2009 to October 2012 which is entirely barred by limitation. Appeal allowed - decided in favor of appellant.
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