TMI Blog2016 (11) TMI 476X X X X Extracts X X X X X X X X Extracts X X X X ..... l of Cenvat credit is not justified. Limitation bar - Held that: - the demand has been raised by mechanically invoking the proviso to Section 11A of the Act. I find no discussion or even a murmur of any evidence or allegation that the respondent has indulged in the act of suppression of facts or wilful mis-statement, contravention to the provision of the said Rule. In the absence of any of the ingredients, there can be no justification to invoke the extended period of time for issuing demand. Respondent has relied on many case laws including the decision of the Hon'ble Supreme Court in the case of CCE Vs. Chemphar Drugs & Liniments [1989 (2) TMI 116 - SUPREME COURT OF INDIA]. In the said decision Hon'ble Supreme Court categorically held ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es manufactured from its sister concern by name, M/s. Perfect Packaging Pvt. Ltd. At the time of clearance of the boxes done the job worker, duty was paid by the appellant by debiting the cenvat credit available in the books of the appellant. Departmental officers visited the original factory premises of the appellant on 17.03.2006 and found the unit running in the name of M/s. Unwin Packaging Pvt. Ltd. As a consequence of investigation, Show Cause Notice was issued to the appellant and (i) An amount of ₹ 4,12,089/- was demanded under Section 11D of the Central Excise Act, 1944 along with interest by Revenue taking the view that the amount recovered through central excise invoices by the appellant by way of excise duty charged on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under the job work Notification No.214/86-CE, dated 16.03.1986. There is no bar on availing the cenvat credit, which continues to remain in the books till the date of surrender of the registration. (ii) Since the excise duty stands paid on the goods by availing cenvat credit, the appellant has not contravened any of the provisions. (iii) He also agitates against the demand on grounds of limitation. His submission is that the Departmental officers visited the said factory on 17.03.2006. However, the Show Cause Notice was issued on 09.03.2009 and hence it is hit by limitation in-as-much-as no specific grounds have been taken in the Show Cause Notice for invocation of extended time limit for demand. (iv) He also cites the follo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty was paid by the assessee making use of the credit, which was available on the date of sale of the unit until the date of surrender of the registration. The Departmental authorities took the view that this was not allowable. Consequently, the authorities below passed the following orders:- (i) Cenvat credit to the extent of ₹ 4,12,089/-, which has been used for making payments by the assessee is liable to be recovered for violation of Rules 3 and 4 of the Cenvat Credit Rules, 2004. (ii) The central excise duty already paid by the assessee to the extent of ₹ 4,12,089/- along with interest is ordered to be recovered under Section 11D of the Central Excise Act, 1944 and penalties equal to the duty was levied on the asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in the Notification. The principal manufacturer, who gets goods manufactured on job work basis will continue to be responsible for payment of central excise duty. 9. In the line with the Notification, the assessee would be entitled to get corrugated boxes manufactured from their sister concern on job work basis. It is not in dispute that the central excise duty liable to be on such corrugated boxes stands paid in the hands of the assessee. The assessee has also accepted that they have observed all the formalities required in terms of the job work Notification No.214/86-CE. There is no finding in the orders of both the authorities below to the contrary. In as much as the amounts stand paid as excise duty on finished products, I find no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the provision of the said Rule. In the absence of any of the ingredients, there can be no justification to invoke the extended period of time for issuing demand. Respondent has relied on many case laws including the decision of the Hon'ble Supreme Court in the case of CCE Vs. Chemphar Drugs Liniments [1989 (40) ELT 276 (SC)] . In the said decision Hon'ble Supreme Court categorically held that conscious or deliberate withholding of information by manufacturer is necessary to invoke larger limitation of five years. In the present case, the Department has acquired full knowledge about the facts of the case at the time of visit of the factory by the officers on 17.03.2006. Consequently, the Show Cause Notice, if any, ought to hav ..... X X X X Extracts X X X X X X X X Extracts X X X X
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