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2016 (3) TMI 663 - CESTAT AHMEDABAD

2016 (3) TMI 663 - CESTAT AHMEDABAD - TMI - Extended period of limitation - whether the demand of duty is barred by limitation - Held that:- In the present case, it is noticed that the Revenue has not disputed the findings of the Tribunal while setting aside the penalty under Section 11AC of the Act as observed that there was no suppression/mis-statement on the part of the Appellant with intent to evade payment of duty. In Final Order dt.10.06.2015, it is observed by the Tribunal that there was .....

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/2012-SM - Order No. M/10007/2016 - Dated:- 8-1-2016 - MR. P.K. DAS, MEMBER (JUDICIAL) For the Petitioner : Shri S.R. Dixit, Advocate For the Respondent: Shri T.K. Sikdar, A.R. ORDER PER: P.K. DAS The Applicant filed this application for rectification of mistake in Final Order No.A/10788/2015, dt.10.06.2015 passed by this Tribunal. 2. The learned Advocate on behalf of the Appellant submits that they have contested the demand of duty alongwith interest and penalty on merit as well as on limitatio .....

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ring Co. Ltd Vs C.C.E. & S.T., Vadodara by Final Order No. A/11114-11115/2015, dt.27.07.2015, allowed the ROM application. He further submits that on the similar situation, the Revenue challenged the order of the Tribunal before Hon ble Gujarat High Court in the case of Commissioner of Customs & Service Tax, Valsad Vs M/s Atul Ltd - 2016-TIOL-36-ST-AHM-CX, dismissed the appeal filed by the Revenue. 3. On the other hand, the learned Authorised Representative on behalf of the Revenue submi .....

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t application before the Bench that this issue was escaped the notice of the Bench, while passing Final Order. In this case, the period of dispute is 2007-08 to 2009-10 and the Show Cause Notice was issued on 22.12.2010. It is seen from the Final Order dt.10.06.2012 that the Appellant pleaded before the Bench that there is no suppression of facts with intent to evade payment of duty. It is also submitted that the inputs were cleared for job work under challan and everything was within the knowle .....

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Rule 16(2) of the CENVAT Credit Rules, 2004 read with Section 11AC of Central Excise Act, 1944. The findings of the Tribunal are reproduced below:- 5. So far as imposition of penalty upon the Appellant is concerned, it is observed from the case records that Appellant was sending the inputs through challans under Rule 4(5)(a) of the CENVAT Credit Rules 2004, therefore, the activities undertaken by the Appellant and job workers of the Appellant and the processes being carried out with yield were .....

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2004 read with Section 11AC of the Central Excise Act, 1944 is required to be set aside. 5. I find that in the above order, the Tribunal had not given any findings on limitation issue. It is also noted that the Tribunal while setting aside the penalty under Section 11AC has observed that there was no suppression/mis-statement on the part of the Appellant with intent to evade payment of duty. Therefore, in my considered view, the demand of duty for the extended period of limitation cannot be sus .....

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e what are required for invocation of extended period. In the light of the opinion given by this Bench, it was interpretational dispute, therefore, it cannot be held that Appellant had any intention to evade duty or take wrong CENVAT Credit deliberately. Accordingly, it is held that extended period is not invocable in these proceedings. Period involved in this case is from 07.07.2004 TO 09.09.2004 and CENVAT Credit was taken in March 2005. The Show Cause Notice was issued on 18.06.2007 which is .....

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before the Hon ble Gujarat High Court in the case of Commissioner of Central Excise and Customs, Valsad Vs M/s Atul Ltd (supra). Following questions of law were raised before the Hon'ble High Court for consideration. (a) Whether on the facts and in the circumstances of the case, the CESTAT is justified in reversing its finding of facts recorded in its final order No.A/11697/2014 dated 25.09.2014 in exercise of power under Section 35C(2) of the Central Excise Act, 1944? (b) Whether on the fac .....

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fying its final order No.A/11697/2014, dt.25.09.2014 to hold that Show Cause Notice dt.01.11.1993 and consequent demand of ₹ 30,08,632.47 made by the Adjudicating Commissioner in its Order-in-Original No.35/MP/95, dt.29.05.1995 in exercise of power conferred under Section 35C(2) of the Central Excise Act, 1944? 7. In the case of Commissioner of Central Excise & Customs, Valsad Vs M/s Atul Ltd (supra), the Hon'ble Gujarat High Court observed as under:- 5. This rectification applicat .....

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out of Para 17 of the Order-in-Original dt.29.05.1995. In view of the above factual matrix, Appellant cannot be said to have any intention to evade payment of duty. Accordingly, extended period of five years is not attracted to the demand issued under Section 11A of the Central Excise Act, 1944. The period of demand is April 1990 to 19.09.1991 and Show Cause Notice was issued on 01.11.93 and the demand of ₹ 30,88,632.47 issued under Section 11A of the Central Excise Act is completely time .....

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