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2022 (11) TMI 288 - AT - Central ExciseCENVAT Credit - availment of credit on remaining 50% unavailed credit in respect of capital goods which allegedly were not in possession and use of the manufacturer (RSP) since the RFP had stopped production at the time of availment of such CENVAT Credit - violation of Rule 4(2)(b) of the CENVAT Credit Rules - Suppression of facts or not - HELD THAT:- Factory in terms of Section 2(e) of the Central Excise Act includes any number of inputs within the same premises irrespective of the number of Central Excise registrations. Thus no distinction between the Rourkela Steel Plant (RSP) and Rourkela Fertilizer Plant (RFP) can be inferred as both are one and the same factory - the Tribunal in the case of DHAMPUR SUGAR MILLS LTD. VERSUS COMMISSIONER OF C. EX., MEERUT [2001 (1) TMI 129 - CEGAT, COURT NO. IV, NEW DELHI] held that the number of different plants manufacturing different excisable goods in the same premises would constitute one factory. Their separate registration under Rule 173G of Central Excise Rules, 1944 would not mean that they are different factories. Different units to be regarded as one factory if all excisable goods are manufactured in the same premises. The audit para No.2 of IR No.30/2004-05 on the basis of which the present issue was raised has been dropped by AG (Odisha) as held in the present Order-in-Original (para 5.9 at page 63). Intimation by the Department to the Appellant regarding dropping of the said para forms part of the Appeal Paper book. The Show Cause Notice dated 19.11.2007 was issued to the Appellant on the basis of said audit para. When the audit Memo itself has been dropped, the present proceeding which has been originated from the said audit Memo has become non est - Hon’ble Supreme Court in the case of ANAND NISHIKAWA CO. LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE, MEERUT [2005 (9) TMI 331 - SUPREME COURT] has held that when facts were known to both the parties, the omission by one to do what he might have done not that he must have done would not render it suppression. On identical issue the Show Cause Notice has been adjudicated in favour of the Appellant and has attained finality in the absence of any challenge by the Department. The subsequent notice cannot be issued beyond limitation as held by the Hon’ble Supreme Court in the case of NIZAM SUGAR FACTORY VERSUS COLLECTOR OF CENTRAL EXCISE, AP [2006 (4) TMI 127 - SUPREME COURT]. The impugned orders cannot be sustained and are accordingly set aside - Appeal allowed - decided in favor of appellant.
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