TMI Blog2013 (9) TMI 314X X X X Extracts X X X X X X X X Extracts X X X X ..... sequent periods Department was aware of the credit taking methodology of appellant. NIZAM SUGAR FACTORY Versus COLLECTOR OF CENTRAL EXCISE, A. P. [2006 (4) TMI 127 - SUPREME COURT OF INDIA] - once a show cause notice invoking extended period had been issued, no further show cause notice for the subsequent period invoking extended period can be issued to the assesse on the same issue. A show cause notice for the period October, 2007 to March, 2008 was first issued to the appellant on the same issue that appellant was taking credit on M.S. Channels, Angles, Beams, Jointing sheets etc. which was not considered admissible by the Department -The period of demand in the second show-cause notice is April, 2008 to June, 2009 was after the pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It was also argued that the disputed input/items on which credit was taken were MS Angles, Channel Bars, Rods Plates and that admissibility of Cenvat credit on these items was subsequently decided by the Larger Bench in the case of Vandana Global [2010 (253) E.L.T. 440 (Tri.-LB)]. Therefore extended period cannot be invoked for the second show cause notice dated 16-6-2010 for the period after 2008 to 2009. 5. After hearing both the sides, it transpires that the only issue required to be decided in this appeal is whether extended period can be invoked in the second show cause notice when on the same issue another show cause notice has already been issued earlier. It is an accepted legal position that once a show cause notice invoking ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of facts, and it is in this background that Hon ble Supreme Court held that the second show cause notice could not be issued by invoking extended period on the basis of same set of facts. The facts of this case are different. There is no dispute about the fact that during the period from August, 1997 to March, 2002, the appellants have committed fraud for evasion of duty by clearing prime quality fabrics as rejects and the show cause notice for the entire period would have been issued on 13-8-2002, had UTL furnished the figures of their sales to UTL for July 2001 to March, 2002 period in time. A separate show cause notice for the period from July, 2001 to March, 2002 had to be issued after issue of the first show cause notice dated 13-8 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ided by the Apex Court, is applicable in this case and the extended period cannot be invoked in the second show-cause notice. It is relevant to see the facts of the case before the Hon ble Supreme Court in the case of Nizam Sugar Factory case (supra) as mentioned in paras 5 6 of the judgment reproduced below : 5. The department had issued a Show Cause Notice (for short the SCN ) to the appellant on 28-2-1984 demanding duty for the period February, 1978 to September, 1982 on the production of impure carbon dioxide emanating as a by-product during the process of fermentation of molasses in the appellant s factory. It was alleged that the assessee had cleared the said carbon dioxide without payment of duty to another unit in contraventio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was submitted that resorting to extended period of limitation under Section 11A(1) was not justified in the circumstances of the case. Appellant was served with the third SCN on 12-9-1988 for the period 16-3-1988 to 27-6-1988 on the same allegations. Assessee filed its reply in terms of the earlier replies i.e. reply to SCN dated 16-7-1987. The adjudicating authority did not accept the appellant s contention and the demands raised in the SCN were confirmed. 8. It is evident from the above facts that three show-cause notices were issued to Nizam Sugar Factory as follows : Sr. No. Period Date of Show Cause Notice (i) Feb. 1978 to Sep. 1982 28-2-1984 (ii) 1982-83 to 1986-8 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... grounds of appeal are, therefore, not acceptable and needs rejection. The reliance placed by the Department on the CESTAT s judgment in the case of Uniworth Textiles Ltd. v. Commissioner of C.Ex., Nagpur [2009 (244) E.L.T. 401 (Tri.-Del.)] is also of no help to the Department as both the show cause notices issued in that case was for the periods prior to the detection as brought out in para-6 above. The facts of the case in Uniworth Textiles Ltd. (supra) were, therefore, different than the facts of the case in the present appeal. 10. In view of the above observations, the appeal filed by the Department is required to be dismissed by upholding the OIA passed by Commissioner (A). Appeal filed by the Department is accordingly dismissed. (P ..... X X X X Extracts X X X X X X X X Extracts X X X X
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