TMI Blog2016 (6) TMI 826X X X X Extracts X X X X X X X X Extracts X X X X ..... use of MS items in fabrication of capital goods, and these in turn are used for manufacturing finished product. When assessee duly filed ER-1 returns, the jurisdictional Range Officer is required to carryout scrutiny of the returns. If this had been done, the short payment would have come to light. In such circumstances, extended period cannot be invoked as there is no wilful suppression or collusion with intent to evade payment of duty. The show cause notice is time barred. The appellant succeeds on the ground of limitation. - Decided in favor of assessee. - Appeal No. E/27183/2013 - A/30377/2016 - Dated:- 5-5-2016 - Ms. Sulekha Beevi, C.S. Member ( Judicial ) Shri R. Muralidhar, Advocate for the Appellant Shri V. Ramakr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... equipments. That they have not used MS items for construction of factory shed, building or for laying foundation. The learned counsel submitted that the demand is hit by limitation as there is no evidence to prove suppression of facts or wilful misstatement. The appellants had disclosed the details of credit availed in their ER-1 returns. There is no column in ER-1 return to indicate the description of item/input on which credit is availed. The department alleges non-mention of the details of input item to be suppression of facts which is not legal or proper. That as there is no suppression of facts the extended period is not invokable. 3. The learned counsel urged that the non-eligibility of Cenvat credit on MS Angles, MS channels HR P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he extended period is legal and proper. He submitted that credit is not admissible and that the Commissioner (Appeals) has rightly upheld the confirmation of demand, interest and penalty imposed. 5. I have considered the submissions made by both sides. The issue to be answered is whether the credit is admissible on MS items used for fabrication of parts/components/spares/accessories of capital goods and whether the show cause notice is hit by time bar. 6. I will first address the issue of limitation. 7. The period involved is October, 2008 to June, 2009 and the show cause notice is dated 26-12-2011 well beyond the normal period. According to department, the appellant did not disclose the fabrication /repair of capital goods in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the expression suppression has been used in the proviso to Section 11A of the Act accompanied by very strong word as fraud or collusion and therefore, has to be construed strictly. Mere omission to give correct information is not a suppression of facts unless it was deliberate to stop the payment of duty. The incorrect statement cannot be equated with willful misstatement. Similarly, the Hon ble Supreme Court in the case of Commissioner of C.Ex., Bangalore V. Karnataka Agro chemicals 2008(227) ELT 12 (SC) held that it is well settled that mere non-declaration is not sufficient to invoke the larger period. Some positive act of suppression is required for invoking larger period of limitation under Section 11A. The Hon ble Supreme Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pparently after two years. Invoking extended period for demand is not tenable in such a situation. 9. In various judgments it has been made clear that suppression of facts can have only one meaning. It is that the correct information was not furnished deliberately to evade payment of duty it will amount to suppression. When facts are known to both parties, the omission by one to do what he might have done and not that he must have done, would not render it suppression. It is settled law that mere failure to declare does not amount to wilful suppression. Identical view was taken by Tribunal in the case of Universal Chemicals Industries Ltd Vs CCE, Vadodara-II 2016( 334) ELT 119(Tri-Ahmd) 10. In addition, it needs to be stated that ..... X X X X Extracts X X X X X X X X Extracts X X X X
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