9911796707
TMI Blog2014 (7) TMI 440X X X X Extracts X X X X X X X X Extracts X X X X ..... ous items without the original duty paying documents. On the basis of this audit memo, show cause notice was issued on 13/2/09 for recovery of the above-mentioned wrongly availed Cenvat credit alongwith interest and for imposition of penalty on the appellant under Rule 15 of the Cenvat Credit Rules, 2004. The show cause notice alleged that the appellant have willfully misstated that the original copies of the relevant document were available, while they did not have the original copies. The matter was adjudicated by the Additional Commissioner vide order-in-original 9/2/2010 by which she held that only the demand of Rs. 44,306/- is correct on merit, but this too is time barred and hence, not sustainable. Accordingly, the Additional Commissi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the allegation of wilful misstatement has been made in the show cause notice, the longer limitation period can be invoked, that in this regard she relies upon the Tribunal's judgment in the case of Best Liquifiable Gases Ltd. vs. CCE, New Delhi reported in 1997 (95) E.L.T. 228 (Tribunal) and Travancore Cement Ltd. vs. CCE, Cochin reported in 1998 (103) E.L.T. 260 (Tribunal). 5. The short point required to be decided in the present appeal is that whether the demand of duty of Rs. 44306/- has to be held as barred by limitation on the grounds of non-mentioning of proviso to Section 11-A in the show cause notice or such non mention has to be held as of no consequence. 6. The additional Commissioner, while adjudicating, has observed as under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prescribed in Rule 9 of the Cenvat Credit Rules, 2004. However, the respondent failed to discharge their duties and responsibilities as required by them under the said provisions in as much as the respondent has shown the receipt of inputs in their raw material accounts without the basis of any proper documents. The respondent has neither intimated the department about the non receipt of the document/ non- availability of the document which proves the correctness of availment of Cenvat credit by them. This was apparently done intentionally in a cool and calculated manner which gets reflected in their acts of not reversing the same even on being pointed out by the Department at the time of audit and subsequent correspondence made by the juri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case. 8. The appellant have advanced the argument that since the proviso to Section 11 A was not specifically mentioned in the show cause notice, the demand should be held has barred by limitation. However, I note that proviso to section 11A is part and parcel of section 11A. Merely because it was not specifically mentioned in the show cause notice when the allegation of suppression are clearly specified and the demand of duty is being raised under section 11A, non-mentioning of the specific proviso of section 11A will not the vitiate the proceedings as long as the charges are clearly brought out in the show cause notice. Not only that section 11A, includes the proviso to the said section and the entire section stands mentioned in the show ..... X X X X Extracts X X X X X X X X Extracts X X X X
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