TMI Blog2015 (5) TMI 23X X X X Extracts X X X X X X X X Extracts X X X X ..... 7; 1,41,142/- from Milan plastics for the goods cleared under the said invoices. The appellant in reply to show cause notice took a stand before the Adjudicating Authority that the said paper would not reveal the clearance of goods in respect of the said invoices. It is stated that the figures mentioned in the rough paper pertained to cash received by the appellant factory from their office for disbursement to the employees. There is no indication undervalue of sales of scraps. The appellant requested the adjudicating authority to produce the seized documents at time of hearing to reveal the truth. The appellant also took same ground before the Commissioner (Appeal). Both the authorities below failed to examine the seized documents. Taking into account of the amount involved and the appeal is old one, there is no reason to remand the matter on issue and the benefit of doubt goes in favour of the assessee. - demand of duty alongwith interest is held barred by limitation - Decided in favour of assessee. - Appeal No. E/799,800,801/2008, Application- E/ORS/19139-41/2015, E/MA(EXTN)/15252,15251,15250/2014 - Order No. A/10335-10337 / 2015 - Dated:- 17-4-2015 - Mr. P.K. Das, Hon'b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order, the Commissioner (Appeals) rejected the appeals filed by the appellants. Hence, the appellants filed these appeals before the Tribunal. The appellants also filed applications for incorporation of additional grounds of appeal. They further filed applications for extension of the stay order. 3. Learned Advocate appearing on behalf of the appellants submits that the demand of duty is barred by limitation. He submits that the appellant availed cenvat credit on the basis of the invoices issued by the registered manufacturer/dealer and duly recorded in the cenvat account. It is evident from the record that the inputs were used in the manufacture of final product and cleared on payment of duty. It is contended that at the initial stage, the Superintendent of Central Excise verified and allowed Modvat credit and duly endorsed in the invoices. The Learned Advocate drew the attention of the Bench to the relevant invoices. He further submits that the appellant acted on bonafide manner. There is no material available of alleged irregularity on the part of the appellant and the extended period of limitation cannot be invoked. He strongly relied upon the decision of the Hon ble High C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 08(232)ELT.408(Guj). Learned Authorised Representative filed written submission opposing application for additional ground filed by the appellant. 6. After hearing both the sides and on perusal of records, I find that during the period from 3.1.2000 to 25.10.2003, the appellant availed cenvat credit on the basis of invoices issued by the registered manufacturers/dealers as per provisions of erstwhile Central Excise Rules, 1944 and Cenvat Credit Rules 2001/2002. Superintendent of Central Excise defaced some of the invoices at the initial stage, with remark Modvat allowed not to be used again. Subsequently, defacing of invoices were stopped, as not required under the Cenvat Credit Rules. The receipt of input and utilization in the manufacture of final products were duly recorded in the cenvat account. On 7.2.2004 the Central Excise Officer of the Head Quarters visited the appellants factory and withdraw input invoices from the factory for further verification. Jt. Commissioner (Prev.), Central Excise, Mumbai II Commissionerate vide letter dtd 25.6.2004 reported that input supplier M/s Raj Petrochem Ltd, was neither any dealer nor any manufacturer registered under Central Excise, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e period of limitation. In our opinion, in view of our above finding that if the original document is issued even by practising fraud, a holder in due course for valuable consideration unless shown to be a party to a fraud, cannot be proceeded with by taking aid of a larger period of limitation as indicated in Section 11A(1) of the Act. It is now settled law that Section 11A(1) is applicable when there is positive evasion of duty and mere failure to pay duty does not render larger period applicable. In the case before us, it is not the case of the Revenue that the transferees were party to any fraud and therefore, the Revenue cannot rely upon a larger period of limitation. Our aforesaid view finds support from the following decisions of the Supreme Court : (i) CCE v. Chemphar Drugs Liniments, reported in 1989 (40) E.L.T. 276. (ii) Padmini Products v. Collector of Central Excise, reported in 1989 (43) E.L.T. 195. (iii) Lubrichem Industries Limited v. CCE, Bombay, reported in 1994 (73) E.L.T. 257. (iv) Nesle (India) Limited v. CCE, Chandigarh, reported in 2009 (235) E.L.T. 577. 13. We thus find substance in the contention of Mr. Parikh that in the case before us, in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cause notice that during the investigation, the officers found a chit paper that the appellant received a payment of ₹ 1,41,142/- from Milan plastics for the goods cleared under the said invoices. The appellant in reply to show cause notice took a stand before the Adjudicating Authority that the said paper would not reveal the clearance of goods in respect of the said invoices. It is stated that the figures mentioned in the rough paper pertained to cash received by the appellant factory from their office for disbursement to the employees. There is no indication undervalue of sales of scraps. The appellant requested the adjudicating authority to produce the seized documents at time of hearing to reveal the truth. The appellant also took same ground before the Commissioner (Appeal). Both the authorities below failed to examine the seized documents. Taking into account of the amount involved and the appeal is old one, there is no reason to remand the matter on issue and the benefit of doubt goes in favour of the assessee. 12. In view of the above discussions, the demand of duty of ₹ 44,10,384/- alongwith interest is held barred by limitation. Further, the demand of duty ..... X X X X Extracts X X X X X X X X Extracts X X X X
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