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2023 (12) TMI 524 - AT - Central ExciseLegality of issue of show-cause notice to the Appellant in invoking extended period and justifying the demand - Suppression of facts or not - CENVAT Credit - input services - services taken for laying down Railway siding used for material handling equipment within the factory premises and construction of rainwater harvesting plant through earth excavation and land development works - HELD THAT:- On perusal of the order passed by the Commissioner, it is noticed that the ground stated in invocation of extended period was not convincing for the reason that he said that had Audit not scrutinised the record, the fact of availment of inadmissible credit would not have come to the knowledge of the Department and, therefore, suppression to evade payment of tax was established - such an observation is not convincing for the reason that the Tribunal has consistently held in various orders that Audit report can’t alone from the basis of invocation of extended period. It is worthwhile to reproduce a portion of judgment passed in the case of M/S THYSSENKRUPP INDUSTRIES INDIA PVT. LTD. VERSUS CCE & ST, PUNE-I [2018 (11) TMI 1041 - CESTAT MUMBAI] concerning the purpose of Audit and its resultant effect holding that it cannot be said that only because audit party had found some credit availed as inadmissible, suppression of fact is made out. It cannot also be established that appellant had any malafide intention to suppress its duty liability from the department. The order passed by the Commissioner of CGST & CX, Nagpur-II, to the extent of denial of credit, is hereby set aside - Appeal allowed.
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