TMI Blog2014 (12) TMI 201X X X X Extracts X X X X X X X X Extracts X X X X ..... emphar Drugs and Liniments, [1989 (2) TMI 116 - SUPREME COURT OF INDIA] has held that extended period is applicable only when something positive other than mere inaction or failure on the part of manufacturer is proved. Similar view was held by Supreme Court in the case of Gopal Zarda Udyog Vs. Commissioner of Central Excise Delhi [2005 (9) TMI 83 - SUPREME COURT OF INDIA]. In the present case the adjudicating authority does not bring out any inaction or failure on the part of the appellants. Prima facie the appellants have a fairly good case atleast for non-invokability of the extended period as a consequence of which the impugned demand would be hit by time bar. The appellants have also contended that the impugned credit is admissible ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the Cenvat credit in respect of thereof and consequently confirmed the impugned demand holding them guilty of suppression of facts. 3. The appellants have contended that: (i) There is no dispute that the parts and component have been used in the factory for captive power plant and therefore they are eligible for the impugned credit in respect thereof. (ii) It is incorrect to say that the boiler and power plant are immovable property and its parts/components are not eligible for being treated as parts/components of capital goods. (iii) They had procured these parts and components and supplied to the contractors. (iv) They referred to the judgments in the cases of CCE, Jalandhar Vs. International Tractors Ltd. 2010 (225) ELT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been held to be sustainable on the basis of the following para: 13.8 Another objection of the party is that the demand is barred by limitation as in the ER-1 returns filed every month, Cenvat credit taken has been disclosed by them and full extracts Cenvat register were also annexed therewith. However, in this case credit has been denied on the ground that the goods were procured by the contractor for use in the execution of the works assigned as per the contract. These facts on which eligibility of the credit depended, cannot be figured out from the ER-1 returns or extracts of Cenvat credit registers. From the ER-1 returns of Cenvat credit registers it cannot be known that the goods are actually procured by contractor and no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... invoking extended period of limitation. Moreover, the party have no reason to doubt about admissibility of Cenvat credit in this case considering various legal provisions judgments allowing Cenvat credit in such cases as discussed in preceding paras. As per settled legal position, things not disclosed to revenue as not required under law cannot be considered as a case of suppression. Thus it is neither a case of suppression facts nor a case of contravention of provisions of Cenvat credit rules with an intent to evade payment of duty or wrongly claim any Cenvat credit amount. The circumstances of the case as well as discussed legal position clearly prove absence of malafide intention on part of party in alleged wrong availment of Cenvat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, 1989 (40) ELT (SC) has held that extended period is applicable only when something positive other than mere inaction or failure on the part of manufacturer is proved. Similar view was held by Supreme Court in the case of Gopal Zarda Udyog Vs. Commissioner of Central Excise Delhi 2005 (188) ELT 251 (SC). In the present case the adjudicating authority does not bring out any inaction or failure on the part of the appellants. 6. Thus we find that prima facie the appellants have a fairly good case atleast for non-invokability of the extended period as a consequence of which the impugned demand would be hit by time bar. The appellants have also contended that the impugned credit is admissible on merit also but without going into a detailed ..... X X X X Extracts X X X X X X X X Extracts X X X X
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