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2016 (9) TMI 368 - CESTAT CHENNAI

2016 (9) TMI 368 - CESTAT CHENNAI - TMI - Invokation of extended period of limitation - Cenvat credit - availed on the amount of excise duty paid in purchase of steel bars, angles, MS Plates and Coils - used in fabrication of capital goods such as machinery, Anneal Lehr & cutting line etc. - period of dispute is from April 2009 to December 2009 - Held that:- the issue for the period prior to 07.07.2009 is in appellant's favour in as much as the Gujarat High Court in the case of M/s. Mundra Ports .....

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n merits upto 07.07.2009 and fully on limitation. - Decided partly in favour of appellant - Appeal No. E/41863/2015 - Final Order No. 41528/2016 - Dated:- 8-9-2016 - Shri P.K.Choudhary, Judicial Member Ms. V. Ubaya Bharathi, Advocate Ms. Minchu Mariam Punnoose, Advocate For the Appellant Shri B. Balamurugan, AC (AR) For the Respondent ORDER M/s. Saint Gobain India Pvt. Ltd (earlier M/s. Sezal Glass Ltd., the appellants herein, are manufacturers of excisable goods falling under chapter 70 of the .....

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fter an audit was conducted by the internal audit group, stating that the appellant had wilfully suppressed and wrongly availed CENVAT credit on items viz. Bars, Angle, Channels, MS Plates & Coils, as Capital goods. In reply vide letter dt. 13.05.2013, that the details submitted vide letter Dated: 16.05.2011, it was submitted that they had a bonafide belief of the eligibility to credit and that the extended period could not invoke the ground of suppression and intention to evade duty. It was .....

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onfirming the interest and penalty. A further appeal to the Commissioner (Appeals) did not yield any favour and hence the present appeal. The appeal was argued on merits and on non invocation of extended period. 2. The appellant was represented by Ms.V. Ubahaya Bharathi and Ms. Minchu Mariam Punnoose, Advocates and the Revenue was represented by Shri B. Balamurugan, AC (A.R) 3. The issue in the present case is as to whether Cenvat Credit can be availed on the amount of excise duty paid in purcha .....

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8. Mr. Y.N. Ravani, learned counsel for the Revenue has placed reliance on the decision of the Larger Bench of the Tribunal in Vandana Global Limited v. Commissioner of Central Excise, Raipur, 2010 (253) E.L.T. 440. We have carefully gone through the decision of the Larger Bench of the Tribunal. We do not find that amendment made in Cenvat Credit Rules, 2004 which come into force on 7-7-2009 was clarificatory amendment as there is nothing to suggest in the Amending Act that amendment made in Exp .....

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ger Bench of the Tribunal used the expression that intention behind amendment was to clarify. The coverage under the input from where this intention has been gathered by the Tribunal has not been mentioned in the judgment. There is no material to support that there was any legislative intent to clarify any existing provision. For the same reason, as mentioned above, the decision of the Apex Court in Sangam Spinners Limited v. Union of India and Others, reported in (2011) 11 SCC 408 = 2011 (266) .....

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ry is eligible for credit, the supporting structures are ineligible for credit; that the matter should be remanded for verification and re-quantification. 4. The advocates for the appellants submitted that the demand for the denial of cenvat credit was by invoking the extended period and in the facts of the present case the appellants have declared in their returns all the particulars and there was no room to impute the guilt of suppression of facts on them. The issue was purely interpretative i .....

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mmissioner reported in 2010 (253) E.L.T. 440 (Tri LB) had denied the credit but this view has been negatived by the Gujarat High Court and by the Madras High Court. It has been the consistent view of the Supreme Court that if there has been conflicting views, the invocation of extended period fails, in the case of M/s. Jaiprakash Industries Ltd Vs. Commissioner of C.Ex.., Chandigarh reported in 2002(146) E.L.T 481 (SC) has in Para 6 & 8 of the judgement observed as follows : 6. We will first .....

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turer in not taking out a licence and in not paying duty does not attract the extended period of limitation. This Court has held that there must be evidence to show that the manufacturer knew that the goods were liable to duty and that he was required to take out a licence. This Court has held that for invoking the extended period of limitation duty should not have been paid, short levied or short paid or erroneously refunded because of either fraud, collusion, wilful mis-statement, suppression .....

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