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TMI Blog2015 (3) TMI 1092X X X X Extracts X X X X X X X X Extracts X X X X ..... against Order-in-Appeal No. PII/PAP/250/2009 dated 18.12.2009. 2. Heard both sides and perused the record. 3. The issue involved in this case is regarding the reversal of differential amount of Cenvat credit availed on the capital goods which was received and subsequently removed from the factory of the appellant. 4. It is the case of the revenue that the appellant had availed excess Cenvat cre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pital goods in the ER1 return which has been received by the departmental authorities and is not being disputed. He would also draw my attention to the finding of the first appellate authority as to there being no clandestine removal for setting aside the penalties imposed by the Adjudicating Authority. He is relying on the decision of the Tribunal in National Flask Ind. Ltd. 2009 (90) RLT 808 and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evenue has not filed any appeal against penalty. 8. After considering the submission made by both sides and perusal of the records, I find the issue is of reversal of the differential amount of Cenvat credit availed on the capital goods when removed as such is hit by limitation. On perusal of the ER1 for the month in July 2007 (as at page 42), I find that the appellant had clearly indicated as "C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the fact of the clearances was reflected in the monthly returns." This above finding is undisputed by the revenue. If there is no clandestine removal, the question of invoking the extended period and confirming the said demand cannot arise. 9. I find that the ratio of the judgment of the Tribunal in National Flask Ind. Ltd. (supra) would be applicable in this case. In our considered view, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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