TMI Blog2015 (12) TMI 251X X X X Extracts X X X X X X X X Extracts X X X X ..... favour. In terms of section 11A(3)(ii) the relevant date in case of excisable goods on which duty of excise has not been levied or paid, short levied or short paid, where under the Rules made under this Act, a periodical return showing particulars of duty paid on excisable goods during period to which the said return relates is to be filed by a manufacturer or producer, the date on which such return is so filed is to be treated as the relevant date. Only in the case where no periodical return has been filed though, it was required to be filed, the last date on which such return is to be filed under the said rules would be treated as relevant date. In this case, though the return for April 2007 to June 2007 quarter was required to be filed on 10.07.2007 but the return was actually filed on 14.08.2007 and, therefore, prima facie, it is 14.08.2007 which would have to be treated as the relevant date. - judgment of Delhi High Court in the case of Super Tyres (P) Ltd. vs UOI (2005 (1) TMI 119 - HIGH COURT OF DELHI) is not applicable to the facts of this case. We are, therefore, of the prima facie view that this is not a case for total waiver - Partial stay granted. - Excise Stay No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he inputs in process and inputs contained in the finished product lying stock as on 31.03.2007. It is on this basis that the Additional Commissioner vide order-in-original dated 30.01.2009 confirmed the duty demand of ₹ 16,99,988/- against the appellant along with interest and imposed penalty of equal amount on them under Rule 15 of the Cenvat credit Rules 2004. On appeal being filed to Commissioner (Appeals) against this order, the Commissioner (appeals) directed certain pre-deposit for hearing the appeal for compliance with the provisions of section 35F and since the appellant could not comply with the Commissioner (Appeals) stay order, their appeal was dismissed for non-compliance with the provisions of section 35F. 1.4 The appellant thereafter filed an appeal to Tribunal against this order and the Tribunal vide final order no. 1053/2011-Ex dated 14.12/2011 waived the requirement of pre-deposit and remanded the matter to Commissioner (appeals) for decision on merits without insisting for any pre-deposit. 1.5 In Denovo proceedings, the Commissioner (Appeals) vide order in Appeal dated 26.12.2013 again confirmed the cenvat credit demand of ₹ 16,99,988/- along wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at Credit Rules, the appellant at the time of opting for SSI exemption were required to pay an amount equal to the cenvat credit involved on the inputs lying in stock, inputs in process and the inputs contained in the finished products lying in stock, that appellant have reversed the cenvat credit only in respect of the inputs in stocks as on 31.0.2010, that when the appellant had given option for availing SSI exemption on 31.03.2007 their option would be followed w.e.f. 18.07.2007 and for this purpose it is not material that during the period from 01.04.2007 to 18.07.2007 they had not made any clearances for home consumption, that Rule 11(2) does not distinguish between the clearances for export or clearance for home consumption and according to this provision, if after reversal of the credit, cenvat credit involved on the inputs in stock, inputs in process or inputs contained in final product lying in stock as on the date of opting for exemption, if any, cenvat credit is still left that credit shall lapse and it cannot be allowed to be utilized for payment of duty on any excisable goods whether cleared for home consumption or for export, that the appellant had filed ER-1 return f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were w.e.f. 19.07.2007 and that since they had availed the cenvat credit during period from 01.04.2007 to 18.07.2007 they should not have been allowed the SSI exemption and accordingly they should be treated as having opted for the exemption only w.e.f. 19.07.2007. We do not accept this plea as when the appellant had given clear option for availing of the SSI exemption w.e.f. 01.04.2007 they should be treated as having started availing of this exemption w.e.f. 01.04.2007 and therefore, the provisions of Rule 11(2) would become applicable. Therefore, on merits the appellant do not have prima facie case in their favour. 6. As regards the plea of limitation, the appellant being SSI unit were required to file quarterly return and the return for April 2007 to June 2007 quarter was required to be filed on 10.07.2007. However, their return was actually submitted by them on 14.08.2007. In this regard, the limitation period of one year or 5 year as the case may be, as prescribed in section 11A starts from the relevant date as defined in section 11A(3). In terms of section 11A(3)(ii) the relevant date in case of excisable goods on which duty of excise has not been levied or paid, short ..... X X X X Extracts X X X X X X X X Extracts X X X X
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