TMI Blog2013 (8) TMI 573X X X X Extracts X X X X X X X X Extracts X X X X ..... ns will not be available prior to 13.5.2003. Period of limitation – Held that:- Extended period of limitation is not invocable – As there is no case of any mischief, fraud or contumacious conduct made out on part of the appellant - and reliance was placed on the ruling of the Apex court in the case of Raj Bahadur Naryan Singh Sugar Mills Ltd. Vs. UOI –[1996 (7) TMI 146 - SUPREME COURT OF INDIA] and also on the ruling in the case of Centre of Development for Advanced Computing Vs. CCE, Pune -III – [2002 (2) TMI 105 - SUPREME COURT OF INDIA ] - Demand notice was issued only on 8.2.2005 relating to the period April, 2001 to 12.5.2003 and the same is barred by limitation in view of the fact that Return for May, 2003 submitted on 10.6.2003 - Limitation expired on 9.6.2204 much before the date of issue of show-cause notice. Decided in favor of Assessee. - E/674/12 - A/256/13/SMB/C-IV - Dated:- 10-4-2013 - Anil Choudhary, J. For the Appellant : Shri Prakash Shah, Adv. For the Respondent : Shri V R Kulkarni, Dy. Commr. (AR) Per: Anil Choudhary: The present appeal has been filed by the appellant, M/s Hawkins Cookers Ltd. against Order-in-Appeal No. BC.295/M-III/2011-1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as not used in the factory of production and hence CENVAT Credit of duty paid on such packing material was not available to the appellant in terms of Cenvat Credit Rules, 2004. In the year 2004, in the course of audit for the period 2001-05, it was pointed out by the department that the CENVAT Credit taken on the extra (master or single) cartons would not be allowed as the same was not used in the factory of production, but are used in the depot of the appellant for packing of the cookers. On this objection being raised by the Revenue, the assessee immediately reversed the credit availed under protest totaling Rs. 6,25,561/- (duty of Rs.4,73,859/-- vide Entry NO. 956 dated 29.12.2004 for the period from April, 2001 to Sept. 2004 and Rs.1,51,702/- vide Entry No. 216 dated 16.6.2005 for the period October, 2004 to May 2005). After such reversal of duty, the department issue two show-cause notices, first dated 8.2.2005 for the period April, 2001 to Sept. 2004 for an amount of Rs. 4,73,859/- and the second show-cause notice dated 7.11.2005 for the period October, 2004 to May, 2004. 4. The matter had earlier come up before this Tribunal in appeal No. E/2657/06-Mum, wherein vide order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er 13.5.2003 the credit on such master cartons shall be available. 7. As regards the plea of limitation, I find that the plea has been taken before both the lower authorities and the Commissioner (Appeals) but no finding on the same has been given. Since this requires examination as to what sort of information ana declaration were filed and whether this matter was within the knowledge of the department or not and whether there was any intention to evade payment of duty at all, the matter is required to be remanded back to the original authority to look into the aspect of the limitation and give its findings thereon. The remand is for the limited purpose of looking into the plea of limitation only. 8. The appeal is partly allowed by way of remand as per above terms. 4.1 On the question of limitation, the Tribunal observed that the appellant had taken a plea before both the lower authorities, but no finding non the same was given and hence, the matter was remanded back to the original authority on the limited aspect of limitation. 4.2 Thus, the Tribunal held that credit was available subsequent to 13.05.2003 and not prior to 13.5.2003 in view of the insertion of clause ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e adjudicating authority further observed that mere knowledge of the department regarding the availment of CENVAT Credit on packing material by itself is not sufficient to allege that the department was aware of the fact that the said packing materials were used outside the factory or were being sent to the depot or the C F agent premises. Further, as per the CBE C Circular NO.637/2002 dated 8.5.2002 provided that CENVAT Credit is admissible only on inputs/capital goods are used within the factory premises except when used for job-work outside the factory. Accordingly, it was held that the appellant is not entitled to the benefit of limitation of one year and extended period of limitation is attracted. Accordingly, the Dy. Commissioner confirmed a demand of Rs.2,74,365/- for the period prior to 13.5.2003, i.e. 1.4.2001 to 12.5.2003. It was further ordered that the CENVAT Credit of Rs.3,52,096/- availed for the period from 13.5.2003 is allowable in view of the earlier order of this Tribunal dated 2.1.2008. Further, interest at appropriate rate under rule 12 of the Cenvat Credit Rules, 01 read with Section 11AB was ordered to be recovered and a penalty of equal amount Rs.2,73,465/- w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of issue of show-cause notice. Further, in view of the law clarified by the Hon'ble Supreme Court in the case of Vikram Cement (surpa), there is no case of any mischief, fraud or contumacious conduct made out on part of the appellant. Hence, the learned Counsel for the appellant strongly contended that the impugned order is fit to be set aside as well as interest and penalty to be quashed. 9.1 The learned Dy. Commissioner (AR) for the Revenue relied on the finding of the lower authority and also relied on the ruling of the hon'ble Apex Court in the case of Maruti Suzuki Ltd. Vs. Commissioner of Central Excise, Delhi III- 2009 (240) ELT 641 (SC), wherein it was held that CENVAT Credit on packing material in question used in course of manufacture of final product have been used subsequent to clearance from the factory premises in the depot of the appellant, and it does not amount to use in the course of manufacture and accordingly not eligible for CENVAT Credit. 10. I have carefully considered the rival submissions. 10.1 So far the merits of eligibility of the CENVAT Credit of the input material (packing materials) in question is concerned, the issue is settled by this Tribun ..... X X X X Extracts X X X X X X X X Extracts X X X X
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