TMI Blog2011 (1) TMI 544X X X X Extracts X X X X X X X X Extracts X X X X ..... iginal authority is not justified. He relies on the decision of the Tribunal in the case of Prasad Machinery Pvt. Ltd. v. CCE, Ahmedabad [2007 -TMI - 2684 - CESTAT, AHMEDABAD]. Demanded in terms of Section 11A - Limitation - Section 11A provides for issue of show cause notice demanding duty short-levied non-levy or short paid. In certain situations, the show cause notice can be issued demanding duty for a period of five years from the relevant date as defined in the Central Excise Act - Learned consultant as not been able to show as to how the date of audit when the department came to know of the irregularity becomes relevant date in the light of the above provision defining the relevant date under Section 11A - Decided against the assesse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ointed out the mistake, they filed revised income-tax returns for the Financial Year 2003-04 i.e. Assessment Year 2004-05 and foregone the benefit already availed by them. In view of the above, denial of the credit by the original authority is not justified. He relies on the decision of the Tribunal in the case of Prasad Machinery Pvt. Ltd. v. CCE, Ahmedabad reported in 2007 (218) E.L.T. 445. 4.2 Further, he submits that the demand is time barred inasmuch as the department was aware of the irregularity in December, 2004 but issued show cause notice only on 3-8-2006 after a lapse of one year from the date of their knowledge. In this regard, he relies on the decision of the Tribunal in the case of CCE, Ahmedabad v. Nandeshwari Packaging rep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ey have not availed the income-tax benefit during the Financial Years 2001-02 and 2002-03. They claim that they have subsequently filed returns in the year 2004-05 amending the income-tax returns for the Financial Year 2003-04 by which they have foregone the benefit of depreciation availed by them for the earlier Financial Years 2001-02 and 2002-03, and therefore denial of cenvat credit is not justified. This reason cannot be accepted. The eligibility of credit is subject to their not availing the benefit of depreciation under the Income-tax Act. If their claim is to be accepted, it may lead to a situation even when the assessee foregoes the benefit of depreciation after few years, the violation during the relevant years in taking irregular ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xcisable goods on which duty of excise has been erroneously refunded, the date of such refund. 8. Irregularly availed and utilized credit also requires to be demanded in terms of Section 11A of Central Excise Act, 1944 as per Rule 15 Cenvat Credit Rules, 2002. Learned consultant as not been able to show as to how the date of audit when the department came to know of the irregularity becomes relevant date in the light of the above provision defining the relevant date under Section 11A. The decisions relied upon by the Consultant do not discuss the definition of relevant date in the context of issue of show cause notice under Section 11A and therefore the said decisions cannot be laying down binding precedent of law and the said decisions ..... X X X X Extracts X X X X X X X X Extracts X X X X
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