TMI Blog2011 (11) TMI 629X X X X Extracts X X X X X X X X Extracts X X X X ..... thout considering the aspect of limitation, though in course of hearing, this point had been raised. Even the para 2 of the SCN mentions that the alleged wrong availment of Cenvat credit had been detected by the audit on the basis of the records produced by the respondent - also, there was bonafide doubt about excisability of the goods due to divergent views of the High Courts, extended period of 5 years could not invoked - Cenvat credit demand is hit by limitation - appeal dismissed - decided against Revenue. - Excise Appeal No. 2977 of 2007 - Final Order No. 847/2011 SM(BR) - Dated:- 17-11-2011 - Rakesh Kumar, Technical Member R. Jagdav, DR for the Appellant Mayank Garg, Adv. for the Respondent ORDER Rakesh Kumar, T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the show cause notice, was upheld alongwith interest and beside this, penalty of ₹ 25,000/- was imposed on the respondent under Rule 15 of the Cenvat Credit Rules, The Assistant Commissioner in the order-in-original held that the items, in question - MS Angles, Channels, Beams, Joists etc. has been used for erection of supporting system for Kiln and, hence, the same not be considered as capital goods nor inputs. 1.1 On appeal to Commissioner (Appeals), the Commissioner (Appeals) by order-in-appeal dated 24/8/07 set aside the Assistant Commissioner's order. The Commissioner (Appeals) set aside the order on merits as well as on time bar holding that the extended period under proviso to Section 11 A (1) is not available to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fraud etc. and the period of 5 years would be counted from the relevant date as defined in Section 11A. She, therefore, pleaded that the impugned order is not correct. 2.2 Shri Mayang Garg, Advocate, the learned Counsel for the respondent, defended the impugned order and pleaded that the items, in question, had been used for fabricating and erecting platform for Kiln, that platform for Kiln is a structure specifically designed for Kiln, that Kiln cannot function without the platform, and in view of this, the Kiln is to be treated as accessory of Kiln accessory, and the same would be covered by the definition, of capital goods, that the MS Angles, Channels, Beams, Joists. Used for fabrication of Kiln would be eligible for Cenvat credit, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... refully considered the submissions from both the sides and perused the records. 4. I find that in this case, while the Cenvat credit demand for the period from April 2004 to June 2005 had been raised by the show cause notice dated 15/3/07, the show cause notice does not make any allegation of misstatement or deliberate contravention of the provisions of the Central Excise Act, 1944 or of the Rules made thereunder with intent to payment of duty and, as such, the proviso to Section 11A (1) has not been invoked. In the order-in-original passed by the Assistant Commissioner simply confirms the demand without considering the aspect of limitation, though in course of hearing, this point had been raised. Even the para 2 of the show cause notice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd, hence, the duty demand itself is not maintainable. Since, the demand is not maintainable on limitation there is no need to go into the question of merit. 5. The Revenue has cited the judgment of Larger Bench of the Tribunal in the case of Nizam Sugar Factory vs. CCE, Hyderabad (supra). This judgment does not help the Revenue as the ratio of the judgment is that the limitation of 5 years is available even when the Department had knowledge about the suppression, misstatement etc. and that period of 5 years would be counted from the relevant date as defined in Section 11A. This judgment would be applicable, if there is existence of wilful suppression of fact, fraud etc. which is not there in this case as there is not even allegation in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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