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2022 (1) TMI 1121 - AT - Central ExciseUtilization of balance of Cess credit after 01.03.2015 for payment of Central Excise Duty - contravention of provisions of Rule 3(7)(b) of the CENVAT Credit Rules, 2004 read with Notification No. 12/2015-C.E.(N.T.) dated 30.04.2015 and Rule 4 of the Central Excise Rules, 2002 - time limitation - HELD THAT:- The issue stands covered by the decision of the Hon’ble High Court of Delhi in the case of M/s. Cellular Operators Association of India [2018 (2) TMI 1264 - DELHI HIGH COURT] wherein the Hon’ble High Court has analysed the various contentions and held that Cess credit cannot be utilized for payment of Excise Duty after 01.03.2015 - the issue on merits has to be answered against the assessee and in favour of the Revenue. Time Limitation - HELD THAT:- The details of the return filed by the appellant has been furnished wherein it can be seen that the appellant has mentioned in the return that they have utilized the credit availed on Education Cess and Secondary and Higher Education Cess for payment of Excise Duty. Though these returns were filed in May 2017, the Show Cause Notice has been issued only two years later, invoking the extended period of limitation - there is no positive act of suppression established by the Department to prove that there is any wilful suppression of facts. The demand raised invoking the extended period of limitation cannot sustain and requires to be set aside - The appeal is allowed on the ground of limitation.
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