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TMI Blog2010 (11) TMI 835X X X X Extracts X X X X X X X X Extracts X X X X ..... s and of service tax paid on input services as per the provisions of Cenvat Credit Rules, 2004. During the course of audit of central excise records of the respondent, it was observed that the respondents were clearing the goods to their trading unit at Bangalore having central excise registration as registered dealer. The goods cleared from Jaipur to their trading unit at Bangalore were warehoused there. It was found that the respondent had availed Cenvat credit of Service tax paid on warehousing and cargo handling services availed at their dealer's premises at Bangalore to which they did not appear to be entitled. It is in view of this that a show cause notice dated 19-9-2010 was issued to the respondent for recovery of allegedly wrongly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... emsp;Shri S.R. Meena, ld. SDR, pleaded that though the respondent in the ER-I Returns filed by them had disclosed the availment of Service Tax Credit, the nature of the input services received had not been disclosed; that other than the ER-I Returns, there was no intimation from the respondent that they had been availing Service Tax Credit in respect of services of warehousing/cargo handling services availed by them at Bangalore, where the goods cleared by them to their Trading unit are stored and sold, that from the information disclosed in the ER-I Return, it was not possible for the Departmental Officers to ascertain as to whether they have wrongly availed Service Tax Credit in respect of the services, which are not covered by the defini ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ycone Paper Ltd. (supra), the Tribunal observing that non-inclusion of cost of packing material came to light only after detection by preventive officers, held that the assessee had mis-declared the value of canisters and cleared them by suppressing supply of packing material and hence, longer limitation period under Section 11AC is available to the Department, and that in view of the above, the impugned order setting aside the Asstt. Commissioner's order on the ground of non-applicability of the proviso to Section 11A(1) and Section 11AC of the Central Excise Act is not correct. 3. Shri Sourabh Yadav, Advocate, the learned Counsel for the respondent defended the impugned order reiterating the Commissioner (Appeals), findings and plea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s scope for doubt that goods were not dutiable is not sufficient for invoking longer limitation period. He pleaded that the Commissioner (Appeals) has given a clear finding that there is no evidence produced by the Department to show that the respondent had deliberately suppressed any relevant information with intent to avail wrong Cenvat credit, while knowing that they were not entitled for the same and in view of this, the Commissioner (Appeals) has rightly held the demand to be time barred. 4. I have carefully considered the submissions from both the sides and perused the records. 5. The point of dispute in this case is as to whether the extended period under proviso to Section 11A(1) of Central Excise Act, 1944 is available ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed or short paid Ist proviso to erroneously refunded, by the reason of fraud, collusion or any wilful misstatement or suppression of facts or contravention of the provisions of this Act or of the rules made thereunder with intent to evade the payment of duty, the person liable to pay the duty, as determined under Section 11A(2) shall also be liable to pay a penalty equal to the duty so determined. 9. From perusal of the proviso to Section 11A(1) and Section 11AC, it is clear that the criteria for invoking extended period of limitation under proviso to Section 11A(1) is identical to the criteria for imposition of penalty under Section 11AC. The Hon'ble Supreme Court in the case of Padmini Products (supra) with regard to the proviso to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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