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2018 (11) TMI 346 - AT - Central Excise100% EOU - CENVAT Credit - credit denied on the ground that appellant availed benefit of N/N. 22/2003-CE dated 31.3.2003 - Held that:- In the present case, the appellant made a declaration on 30th December 2013, in respect of the dues not paid by him during the period July 2009 to March 2012. As such the service tax, which was required to be paid by the head office from July 2009 to March 2012, was not being paid and was ultimately, by taking the benefit of the said scheme, was declared on 30.12.2013. This leads to the inevitable conclusion that there was suppression or mis-statement by way of non-payment of tax on the part of the assessee’s head office, which was ultimately paid by taking the shelter under the said scheme. The facts clearly leads to the conclusion that tax was not being paid during the relevant period and as such it can be concluded that there was suppression or mis-statement on the part of the assessee, thus leading to non-availability of credit to them. Applicability of Board’s Circular No. 170/5/2013-ST dated 8.8.2013 - Held that:- There is no clarification to the effect that the duty/tax paid under the said scheme would be admissible as a credit. It only clarifies that the Cenvat credit would be governed by the Cenvat credit Rules, 2004 - the said rule deny availing the credit in respect of the tax/duty paid under suppression or mis-statement - the said circular is not applicable to the facts of the case. The appellant is entitled to the credit of ₹ 2,78,19,091/- and the demand along with penalty is set aside - appeal disposed off.
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