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2016 (10) TMI 820 - AT - Central ExciseInput credit - LSHF-HSD - whether the appellants are eligible to avail CENVAT Credit on Low Sulphur High Flash - High Speed Diesel Oil keeping on view that LSHF HSD is nothing but HSD with a different flash point and specific content of sulphur and hence the same is nothing but HSD, which is excluded from the definition of “input”? - classification of goods - interpretation of law - Held that: - the definition of input in 2 (k) of CENVAT Credit Rules, 2004 excludes interalia, High Speed Diesel Oil (HSD) from the meaning of input. It is further seen that in the Central Excise Tariff Act, 1985 the classification of HSD is 2710 19 30. There is no separate sub-classification for LSHF-HSD. This implies that HSD and all its variations will necessarily be classified under the said heading only. The input invoices of LSHF-HSD from Indian Oil Corporation Ltd., also clearly classify the said items under CTH classification 2710 19 30 only. The use of the word High Speed Diesel in the definition of input will therefore necessarily have to harmonize with the tariff entry and heading of the same item in the said Central Excise Tariff Act. This being so, HSD and all its variations including LSHF-HSD, will be in the same footing, for the purposes of Rule 2(k) of CENVAT Credit Rules 2004. Consequently, HSD and all its variations including LSHF-HSD, will be excluded from the ambit of input defined in the said Rule 2(k). Extended period of limitation - It is not the case that the appellant had not submitted statutory returns disclosing the necessary details. In fact, on going through copies of RT-12 submitted by the appellant we find that product LSHF-HSD or LS/HF HSD, has been mentioned in the input credit statements. However, as indicated in the SCN, and as conceded by the Ld. Counsel, the appellant had described the product as ST 6733 in the input credit statements for the latter part of the impugned period. This being so, we are of the considered opinion that for the periods during which the appellant had indicated the description of the product/input as LSHF-HSD or LS/HF HSD, the department cannot allege suppression and hence any demand of duty for the said irregular availment of credit will be barred by limitation. Whereas, during the period in which the appellant had merely described the product/input as ST 6733, in our view would amount to suppression/and mis-declaration of vital facts and the department is well within its rights to demand duty for said period. Credit not allowed - however, the demand for the period during which appellant has declared the input goods as LSHF-HSD or LS/HF HSD is not sustainable. The demand for the period during which the appellant has declared the input goods as ST 6733 is sustained - matter remanded to adjudicating authority for the limited purpose of calculating the demand sustained for the said period along with interest and consequential revision of penalty as applicable - decided in favor of Revenue.
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