TMI Blog2016 (3) TMI 997X X X X Extracts X X X X X X X X Extracts X X X X ..... ncing evidence. So much so, the appellant was not even allowed to cross-examine the office attendant whose statement was the only basis for framing the appellant. Therefore, the respondent has failed to establish the charge against the appellant. Besides this the entire demand in this case is also time barred. The impugned show cause notice was issued on 17.10.2007 pertaining to the invoices dated 5.2.2004, 17.3.2004, 22.6.2004 and 25.3.2005, which is beyond the normal period of one year. Further, when the appellant has been filing the relevant ER-1 returns regularly and disclosing the details of these invoices on the basis of which the credit was availed, then it cannot be said that the appellant has wilfully suppressed the material fact from the department so as to invoke the extended period of limitation. Therefore, in my view, the entire demand is time barred. Further, the question of penalty does not arise when the demand is time barred. - Decided in favour of assessee - Appeal No. E/1193/10-Mum - Order No. A/86244/16/SMB - Dated:- 4-3-2016 - MR. S.S. GARG, MEMBER (JUDICIAL) For the Petitioner : Shri S.P. Tavkar, Consultant For the Respondent : Shri Sanjay Has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and recorded statement dated 2.3.2006 of Shri Dinesh P. Jain, partner of the appellant, under Section 14 of the Central Excise Act, wherein he has stated that the appellant received copper wire bars under the above invoices and availed the cenvat credit. He has also given the length, weight and thickness of the copper wire bars in his statement and subsequently the appellant debited the cenvat credit of ₹ 7,31,301/- in RG23A part II under protest and informed the Superintendent vide letter dated 4.3.2006 stating that they have reversed the cenvat credit in order to co-operate with the department with a right to claim the refund after verification of the said documents from the department. Thereafter the appellant filed a refund application vide their letter dated 28.2.2007 with the jurisdictional Assistant Commissioner, seeking refund of ₹ 7,31,301/- under Section 11B of the Central Excise Act, but the Assistant Commissioner vide his letter dated 15.5.2007 returned the refund application as premature on the ground that investigation in the matter was still under progress. Thereafter a show cause notice dated 1.10.2007 was issued by the Additional Commissioner to the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of the verification, there is no material with the respondent to come to the conclusion that M/s. Annapurna Impex Pvt. Ltd. did not have the facility to manufacturer copper bars/copper rods. The learned counsel also submitted that the onus to prove this allegation was squarely on the department which the department failed to discharge and, therefore, the entire investigation in this case was faulty. He cited Section 101 of the Indian Evidence Act to support his contention that the onus to prove the allegation was on the department which the department failed to discharge. 3.1 The learned counsel further submitted that the respondent has ignored the verification report of the Inter-State Excise and Taxation Department submitted by the appellant, which contained the name of the supplier M/s. Annapurna Impex Pvt. Ltd. in their factory address and invoice numbers of M/s. Annapurna Impex Pvt. Ltd. and the name of the transporter with relevant details of the consignment and the value of the goods, which is matching with the invoices of M/s. Annapurna Impex Pvt. Ltd. Besides these, lorry receipts and cheques under which the payments were made to M/s. Annapurna Impex Pvt. Ltd. for sup ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellant not to disclose the correct information. All the information relating to the impugned credit was placed before the department at the time of filing the relevant ER-1 returns. When the details of the invoices on the basis of which the impugned credit availed were provided to the department from time to time, it cannot be said that there was any wilful attempt on the part of the appellant to suppress or misdeclare any information from the department. Similarly, he has challenged imposition of penalty under Section 11AC on the ground that there is no fraud, collusion or any wilful misstatement or suppression of facts with intent to evade payment of duty and, therefore, the respondent cannot invoke Section 11AC and moreover, the respondent has nowhere observed that the wrong availment and utilization of credit was on account of fraud or collusion etc. with intent to evade duty. 4. On the other hand, the learned AR has submitted that the onus to prove that the appellant has rightly availed the cenvat credit against the four invoices involved in this case is on the appellant, which they failed to discharge. He further submitted that M/s. Annapurna Impex Pvt. Ltd. was eng ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ire case and further, the statement of Shri Purshottam Lal was recorded on 18.5.2005 whereas the invoices involved in this case pertain to much earlier period. It is also pertinent to note that the payment to M/s. Annapurna Impex Pvt. Ltd. was also made by cheques by the appellant. As per the Evidence Act, the onus to prove that the invoices on which the appellant has taken cenvat credit are fake and invalid, was on the department and the department failed to prove the same by bringing on record any credible and convincing evidence. So much so, the appellant was not even allowed to cross-examine the office attendant whose statement was the only basis for framing the appellant. Though the respondent has placed on record copy of the decision against M/s. Annapurna Impex Pvt. Ltd., but in the said decision, nothing has come against the present appellant. Therefore, in my considered opinion, the respondent has failed to establish the charge against the appellant. Besides this, I am of the considered opinion that the entire demand in this case is also time barred. The impugned show cause notice was issued on 17.10.2007 pertaining to the invoices dated 5.2.2004, 17.3.2004, 22.6.2004 and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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