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TMI Blog2016 (5) TMI 657X X X X Extracts X X X X X X X X Extracts X X X X ..... t mistakenly took Cenvat Credit with respect to export related services, totally amounting to Rs. 13,61,340.50(Rupees Thirteen Lakh Sixty One Thousand Three Hundred Forty and Fifty Paisa only), instead of claiming refund as per the procedure set out in Notification No.41/2007-ST dated 06.10.2007. That as soon as the mistake was pointed out to them the entire amount was paid and intimation to that effect was given to the Department on 26.06.2009. It is the case of the Appellant that period involved in this case is from April, 2008 to November, 2008 and the required return was also filed by the Appellant in the month of May, 2009. That the Show Cause Notice was issued on 23.06.2010 which is after a period of 1(one) year as contemplated under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ulated from the date of receipt of information from the Appellant about the payment from the Appellant. That this relevant date and period has been specified under first Proviso to Section 11A(2B). Ld.AR emphasized that the intimation of payment of duty was given by the Appellant on 26.06.2009 and Show Cause Notice was issued on 23.06.2010 which is within a period of 1(one) year required under Section 11A(1) of the Central Excise Act, 1944. Ld.AR thus strongly argued in favour of the Order passed by the First Appellate Authority. 4. Heard both sides and perused the case records. Appellant has not agitated the issue on merits regarding taking of Cenvat Credit. The entire amount was suo motu paid by the Appellant and an intimation to that ef ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 11A(2B) of the Central Excise Act, 1944 to argue that period of 1(one) year, referred to in Sub-Section (1) of Section 11A, is to be counted from the date of intimation given by the Appellant regarding payment of amount. The relevant Section is reproduced below:- "(2B) Where any duty of excise has not been levied or paid or has been short-levied or short-paid or erroneously refunded, the person, chargeable with the duty, may pay the amount of duty [on the basis of his own ascertainment of such duty or on the basis of duty ascertained by a Central Excise Officer] before service of notice on him under sub-section (1) in respect of the duty, and inform the Central Excise Officer of such payment in writing, who, on receipt of such in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s judicial pronouncements, therefore, demand of interest has also to be considered as demand of duty to which Section 11A of the Central Excise Act, 1944 is applicable. Having said that relevant date for calculating period of 1(one) year for demanding interest will have to be calculated w.e.f. 26.06.2009 when Appellant intimated the Department about the payment of duty. The Show Cause Notice was issued on 23.06.2010 which is within a period 1(one) year from the date of intimation (26.06.2009) given by the Appellant. Accordingly it is held that demand issued to the Appellant is not time barred and has been correctly confirmed by the First Appellate Authority. The case law of Gujarat High Court in the case of Commissioner of C.Ex., Surat-I vs ..... X X X X Extracts X X X X X X X X Extracts X X X X
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