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2022 (6) TMI 858 - AT - Central ExciseCENVAT Credit - denial of Cenvat Credit on the ground that the appellant have taken the Cenvat Credit suo-moto as they have also filed the refund claim - time limitation - HELD THAT:- The Cenvat Credit was denied by both the lower Authorities on the ground that they have taken credit suo-moto. It is difficult to understand what is the meaning of suo-moto where the appellant have taken the credit first time at the time the refund stand rejected. The appellant had two option either to pursue the refund or to take the credit which is permissible as per Cenvat Credit Rules, 2004. Since the appellant’s claim stand rejected and on that submission their appeal also disposed of by this tribunal. According they have taken the Cenvat Credit after disposal of the appeal there is nothing survive in the department’s case. Time Limitation - HELD THAT:- The allegation of time limitation was not made in the show cause notice. Therefore, the appellant cannot be expected to make any presentation on the issue which was not raised in the show cause notice. Secondly, it is admitted fact that the appellant have taken the Cenvat Credit of ISD invoice and in case of ISD invoice no time limit has been prescribed. It is a settled law that if the invoice is of dated prior to amendment inserting the 1 year time limit, in such case the limitation on 1 year shall not apply, for this reason also the ground of the Lower Authority on limitation does not survive. Hence there is nothing wrong in availment of Cenvat Credit by the appellant. Appeal allowed - decided in favor of appellant.
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