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2015 (10) TMI 2275 - CESTAT NEW DELHI

2015 (10) TMI 2275 - CESTAT NEW DELHI - TMI - Availment of wrongful CENVAT Credit - Imposition of equivalent penalty - Held that:- Department has come to know about wrongful availment of credit on 2.1.2008. On pointing out the defect, the appellant reversed the credit. If the appellant was liable to pay interest the department ought to have informed the same to the appellant soon after receiving the letter informing the reversal of credit. - Department has no case that the invoices are bogus. No .....

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d amount to not taking credit. Taking into consideration these facts and circumstances of the case, I do not find that department has been able to establish fraud, or suppression with intention to evade payment of duty so as to invoke extended period. I am of the view that the demand is barred by limitation. - Decided in favour of assessee. - Appeal No. E/55994/2014-Ex-SM - Final Order No.53100/2015 - Dated:- 7-10-2015 - Smt.Sulekha Beevi C.S., Member (Judicial) For the Petitioner: Shri Manish S .....

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credit on 2 scalping machines on the invoice dated 23.3.2007. Though the appellant had availed credit on these machines, the machines were not available in the factory. On pointing out this, the appellant reversed the credit and informed the same to the department vide letter dated 9.1.2008. The appellant had also informed that credit had been availed on one Draw Bench machine which was not received in the factory and therefore the appellant reversed the credit involved on their own. Later, in 2 .....

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same. Aggrieved the appellant is before this Tribunal. 2. Learned Counsel for the appellant argued both on the issue of limitation as well as on merits of the case. With regard to the issue of limitation, learned Counsel urged that the fact was in the knowledge of the department on 2.1.2008 itself and the show cause notice issued after four years is barred by limitation. It is submitted that on pointing out, the appellant had reversed the credit and intimated the department on 9.1.2008, itself a .....

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lied upon the decision of Hon ble Gujarat High Court in CCE, Vadodara-II vs. Dynaflex Pvt.Ltd.-2011 (266) ELT 41 (Guj.) and Orissa Bridge & Construction Corpn.Ltd. vs. CCE, Bhubaneswar-2011 (264) ELT 14 (SC). 3. Per contra, learned AR reiterated the findings in the impugned order. It is submitted that the appellant though reversed the credit but did not pay the interest. Further, the fact that wrongful availment of credit would not have come to light without search and visit conducted by the .....

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physical receipt of these goods in the factory premises. Therefore, there was fraud and suppression of facts on the part of the appellant and therefore extended period of limitation has been rightly invoked by the adjudicating authority. 4. I have considered the rival submissions and perused the records. The credit has been reversed by the appellant on 9.1.2008. In the letter informing the department about reversal of credit, the appellant has furnished the details of credit balance to make it .....

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Undisputedly the department has come to know about wrongful availment of credit on 2.1.2008. Frail attempt is made by the respondent to allege suppression of facts against the appellant by stating that the production manager stated a different reason for reversal of credit in his statement dated 22.3.2011, where as in the letter dated 9.1.2008 the appellant had stated that the credit is being reversed because the machines are yet to be installed. It is the case of the department that these state .....

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