TMI Blog2015 (5) TMI 994X X X X Extracts X X X X X X X X Extracts X X X X ..... f suppression of fact, willful misstatement etc. The fact is not under dispute that the appellants have reflected the credit particulars in their periodic ER-1 returns duly filed before the Jurisdictional Central Excise Officers. Hence, the fact of taking of credit on the disputed goods and suo motto reversal thereof was known to the Department well in advance before detection of the mistake by the Audit Wing. The reliance placed by the Ld. DR on the judgment of Hon'ble Supreme Court in the case of Ind Swift Laboratories [2011 (2) TMI 6 - Supreme Court] has no application to the facts and circumstances of the present case because, the issue involved in the said decided case is with regard to interpretation of the word 'or' / 'and' co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to inadvertence, the appellant took cenvat credit on the disputed steel items by treating the same as capital goods. On detection of the mistake that the disputed goods will not qualify as capital goods, the appellant suo motto reversed the cenvat credit and took the said credit by treating the disputed goods as 'Inputs'. He submits that since the eligibility of disputed goods to cenvat credit under the inputs has not been disputed by the Department, the credit reversal under the head 'capital goods' and subsequent taking of credit under the head 'input' will not be considered as reversal at all and there is no loss of Revenue to the Govt. exchequer, for which the interest liability can be fastened on the appellant. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... overy of interest. Hence, according to him, in absence of any specific provision contained in section 11A, same provision dealing with the extended period will have no application and accordingly the Department has rightly invoked the provisions of Rule 14 of the Cenvat Credit Rules for confirmation of the interest liability. To strengthen his above submissions, he cited the judgment of Hon'ble Supreme Court in the case of UOI vs Ind-Swift Laboratories Ltd. reported in 2011 (265) ELT 3 (S.C). 4. I have heard the Ld. Counsel for the parties and perused the records. 5. I find from the available records that the appellant in both their reply to Show Cause Notice as well as in the appeal filed before the Commissioner (Appeals), have s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions of the Ld. Advocate that the SCN has been issued beyond the period of one year from the relevant date, inasmuch as, the period involved in the present case is from July 2008 to February 2010 and SCN has been issued on 16.08.2011 which is more than one year from the relevant date. I also find that though SCN has been issued beyond the period of one year, but the proviso to section 11A of the Act which deals with issuance of the SCN upto a period of 5 years has not been invoked in the said notice specifically alleging involvement of suppression of fact, willful misstatement etc. The fact is not under dispute that the appellants have reflected the credit particulars in their periodic ER-1 returns duly filed before the Jurisdictional Centr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation of the extended period of limitation has been enunciated by the Hon'ble Supreme Court in the case of Chemphar Drugs Liniments (supra) wherein it has been held that in order to make the demand for duty sustainable beyong a period of six months and up to a period of 5 years in view of the proviso to sub-section 11A of the Act, it has to be established that the duty of excise has not been levied or paid or short levied or short paid, or erroneously refunded by reasons of either fraud or collusion or willful misstatement or suppression of facts or contravention of any provision of the Act or Rules made there under, with intend to evade payment of duty. Something positive other than mere inaction or failure on the part of the ma ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
