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2015 (3) TMI 1125 - COMMISSIONER (APPEALS) OF CUSTOMS CENTRAL EXCISE & SERVICE TAX RAIPUR

2015 (3) TMI 1125 - COMMISSIONER (APPEALS) OF CUSTOMS, CENTRAL EXCISE & SERVICE TAX, RAIPUR - 2015 (40) S.T.R. 412 (Commr. Appl.) - Corrigendum to show cause notice - Denial of natural justice - Entitlement for the Cenvat credit - as in the show cause notice, the charge of suppression of facts from the department thereby invoking the larger period of limitation - Held that:- It is observed and so contended by the appellant that the adjudicating authority has issued Corrigendum dated 22-1-2014 to .....

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en if same was held, the submissions made therein have not been recorded and taken into consideration by the adjudicating authority. In either scenario, the principle of natural justice has been violated by the adjudicating authority as order has been passed without considering defence after issuance of ‘Corrigendum’.

In the case of Penguin Electronics (P) Ltd. v. Commissioner of C. Ex., Mumbai-II [2005 (3) TMI 529 - CESTAT, MUMBAI ], the Hon’ble Tribunal has held that the issue of co .....

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essee. None for the Department. ORDER M/s. Bharat Sanchar Nigam Ltd., Telecom Factory, Wright Town, Jabalpur (M.P.) (hereinafter referred to as the Appellant ) has filed an appeal on 2-6-2014, along with an application for waiver from pre-deposit against Order-in-Original No. 09-11/DEM/DC/14-15, dated 6-5-2014 issued by the Deputy Commissioner, Customs, Central Excise & Service Tax Division, Jabalpur (M.P.) (hereinafter referred to as the Adjudicating Authority ) disputing the following issu .....

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t the impugned order suffer from serious factual error, invocation of longer period, alteration of charges levelled in the original SCN and subsequent issue of SCN which are not permitted under the law, all the above makes the entire order unwarranted and bad in law; that the appellant is a Govt. of India PSU and never have any intent to evade any duty or defraud Govt. Revenue. 3. The grounds of appeal stated in the appeal memo, submission made on 9-7-2014 and 26-2-2015 are as follows : (i) .....

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r passed by the adjudicating authority by clubbing three show cause notices, which were issued independently, but there is no mention in the impugned order that for the sake of brevity, a common order has been passed. (v) That the adjudicating authority committed serious error of law in issuing subsequent show cause notice in the name of corrigendum which permitted in law only mistake in nature of typographical can only be corrected but subsequent SCN cannot be issued. (vi) That the adjudicating .....

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ned order. (ix) That the impugned order wrongly resorted longer period when normal period is available to revenue because issue is well known to the revenue and the appellant filed excise returns showing the input credit. They placed on the decision delivered in the case of CCE, Nagpur v. Ultratech Cement Ltd. [(2010) 1 taxman.com 495], CCE, Vadodra v. Lear Automotive India Ltd. [(2013) 30 taxmann.com 178], Polylink Polymers (P) Ltd. v. CCE (AhmEdabad) [2014 taxman.com 216] and BASF India Ltd. v .....

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el of the appellant on 5-3-2014 in response to personal hearing and filed written submission. (xi) That appellant has not availed any irregular Cenvat credit but the same has been availed properly and there is neither any infirmity nor pointed out by Range Officer in statutory returns. The appellant therefore requested to set aside the impugned order. 4. Personal hearing was attended by Shri Kamal Khemuka, Advocate on behalf of the appellant on 26-2-2015, wherein the contentions made in app .....

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r the appellant is entitled for the Cenvat credit of ₹ 4,72,454/- or otherwise. 7. It is observed that the period and amount covered by the show cause notice decided by the impugned order is as below : Sr. No. SCN No. & Date Period Amount (Rs.) 1 V(73)03-26/DEM/13-14/6510, dated 3-9-2013 08/2008 to 03/2013 (amended to April, 2012-March, 2013 vide Corrigendum dated 22-1-2014) 4,72,454/- 8. I find that the issues involved in the aforesaid show cause notice are wrong availment o .....

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the appellant that the adjudicating authority has issued Corrigendum dated 22-1-2014 to the aforesaid show cause notice, wherein the period covered in the impugned show cause notice was amended to 04/2012 to 03/2013, after 4-12-2013 referred to in Para 9 of the impugned Order, as the date, on which personal hearing was held. Since there is neither any reference in the impugned Order of any personal hearing being held after issuance of Corrigendum nor the department has made any submission in thi .....

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.T. 194 (Tri. - Mumbai)], the Hon ble Tribunal has held that the issue of corrigendum to show cause notice after personal hearing is not valid. The relevant Para 3(e) of this decision is reproduced below : Para 3(e) : In the facts and circumstance of this case we find that a prima facie case has been made out to come to conclusion that the principles of natural justice have been violated by the adjudicator and the decision impugned herein as arrived is required to be set aside with directions th .....

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justice. 11. In the case of Raymond Ltd. v. Commissioner of Central Excise, Raipur [2008 (224) E.L.T. 413 (Tri. - Del.) = 2007 (6) S.T.R. 255 (Tri. - Del.)], the Hon ble CESTAT has held as under : 4. From the above observations, it is clear that when the corrigendum incorporating the changes in the Finance Act were sent to the appellants on 3-11-2004, as an amendment to the show cause notice dated 28-9-2001, the appellants were not given further opportunities to appear in person and de .....

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