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TMI Blog2012 (5) TMI 353X X X X Extracts X X X X X X X X Extracts X X X X ..... was meant for Faridabad unit. The consignment was received in Okhla unit and initially they took Cenvat credit there but on realizing that the goods are not meant for Okhla unit and the same are meant for Faridabad unit, the entire consignment was transferred to Faridabad unit after reversing the Cenvat credit and endorsing the invoice in favour of Faridabad unit. On the basis of this endorse invoice dated 30th April 2002, the Faridabad unit of the appellant took Cenvat credit of Rs. 7,280/-. In May 2002, the head office of the appellant company received some imported capital goods imported under bill of entry 339111 dated 18-5-02 involving additional customs duty of Rs. 1,07,116/- and from there the goods were transferred to Okhla unit wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rules, 2004 readwith proviso to Section 11A(1) of Central Excise Act, 1944 and Section 11AB ibid and also for imposition of penalty on them under Rule 15 of Cenvat Credit Rules, 2004 readwith Section 11AC ibid. The extended period was invoked by alleging that the wrong availment of credit has happened due to wilful suppression of facts on the part of the appellant. The show cause notice was adjudicated by the Assistant Commissioner vide order-in-original dated 30-10-07 by which the entire Cenvat credit demand was confirmed alongwith interest and beside this, penalty of equal amount i.e. Rs. 2,28,091/- was imposed on them under Section 11AC of the Central Excise Act. On appeal to Commissioner (Appeals), the Assistant Commissioner's order wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed that the goods in respect of which the Cenvat credit of Rs. 1,18,396/- has been taken were received by the Faridabad unit, that in view of this, there is no ground for denying the Cenvat credit on the basis of endorsed invoice/ bill of entry, that in any case the Okhla unit, cleared the capital goods, in question, to the Faridabad unit after reversing the Cenvat credit, that as regards the capital goods Cenvat credit of Rs. 1,07,116/- taken during April, June and August 2004 on the basis of five invoices, during that period though the capital goods were used for manufacture of goods on job work, which were cleared at nil rate of duty under job work challans under exemption Notification No. 214/86-C.E., those goods cannot be called exempt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned Departmental Representative defended the impugned order by reiterating the findings of the Commissioner (Appeals) and pleaded that so far as the capital goods involving Cenvat credit of Rs. 1,09,695/- are concerned, the same during the period of dispute were exclusively cleared for the manufacture of the goods which were exempted goods for the reason that the same were being cleared at nil rate of duty by availing duty exemption under Notification No. 214/86-C.E., that Notification No. 214/86-C.E. is just like any other exemption notification and goods cleared by availing full duty exemption under Notification No. 214/86-C.E. have to be treated as exempted goods within the meaning of this term, as defined in the Cenvat Credit Rules, tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion of the Rules with intent to evade payment of duty. There is a series of judgment of the Hon'ble Supreme Court in the cases of CCE v. Chemphar Drugs & Liniments reported in 1989 (40) E.L.T. 276 (S.C.) and Padmini Products v. CCE reported in 1989 (43) E.L.T. 195 (S.C.), wherein it has been held that mere inaction or failure to furnish some information is not sufficient for invoking extended period under proviso to Section 11A and some positive evidence in this regard must be produced. In this case find that the wrong availment of Cenvat credit had been detected in course of audit of the records of the appellant which were produced by them to the auditors at the time of their visit to the factory. Moreover in respect of credit of alleged ..... X X X X Extracts X X X X X X X X Extracts X X X X
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