TMI Blog2016 (6) TMI 824X X X X Extracts X X X X X X X X Extracts X X X X ..... bject to detailed scrutiny in course of which the concerned officer can call for documents from the assessee wherever necessary for the scrutiny. In the present case, we find that the starting of the enquiry was stated to be scrutiny of ER-1 Returns. This was done apparently after two years. Invoking extended period for demand is not tenable in such a situation. The show-cause notice is barred by limitation. In the result, the impugned order is set aside and appeal filed by assessee is allowed with consequential reliefs - Decided in favor of assessee. - Appeal No. E/2255, 2453/2012 - - - Dated:- 29-2-2016 - Ms. Sulekha Beevi, C.S., Member(Judicial) Ms. Rukmani Menon, Advocate for the assessee Shri Raj Kumar Varma, Authorised ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nging the disallowance of credit on MS items. Revenue has filed the appeal challenging the reduction of penalty. 3. During the setting up of their new unit at Boyireddipalli, the assesses had given civil contracts to certain firms and the work of steel fabrication was given to M/s. Hajee A.P. Bava Co. The assessee had purchased both TOR steel and structural steel. They did not avail credit on TOR steel used in civil construction works. The assessee availed credit on structural steel (M.S. items) used in the fabrication works of M/s. Hajee A.P. Bava Co. On verification of equipment fabricated / erected by M/s. Hajee A.P. Bava Co., it was noticed that certain items not related to capital goods / parts / components / accessories were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssue whether credit is admissible on structural items used for fabrication of shed, building etc. was contentious and it was referred to the Larger Bench. The appellants availed the credit on these structural items on the bona fide belief that credit is admissible. That the assessee furnished all details called for by department and there is no suppression of facts to invoke the extended period. The details for issuing show-cause notice was taken from the ER-1 returns and records maintained by assessee which would establish that there was no suppression. As there was no suppression of facts and the issue was a contentious one, the longer period cannot be invoked. She strongly contended that the demand is barred by limitation. 6. Against ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd when permanently embedded to earth, they cannot be treated as inputs. Prior to this judgment, the issue was subject matter of dispute at various levels. In Bhushan Steel Strips Ltd. [2008(223) ELT 517 (Tri.)], the credit was held to be admissible. In the present case, the authorities below have denied the credit relying on the judgment laid in Vandana Global Ltd. case (supra). Therefore the assessee s contention that prior to the judgment in Vandana Global Ltd. case, they entertained a bona fide belief that credit is admissible is not without force. Further Revenue has not adduced any evidence to establish that there was suppression of facts with intent to evade payment of duty. I find that Revenue has miserably failed to establish suf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under Section 11A. The Hon ble Supreme Court in the case of Jai Prakash Industries Limited V. Commissioner of C.Ex., Chandigarh 2002(146) ELT 481 (SC) held that in the case of divergent views of the various High Courts there was a bona fide doubt as to whether or not such activity amounted to manufacture. In such situation, the extended period cannot be invoked. In Uniworth Textiles Ltd. V. Commissioner of Central Excise, Raipur 2013(288) ELT 161 (SC), the Hon ble Supreme court held the burden of proving any form of mala fide lies on the person who is alleging it. Such allegations demand prove of order of credibility. Considering the above position of law, we find that in the present case, the demand for extended period cannot be sustained. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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