TMI Blog2016 (12) TMI 589X X X X Extracts X X X X X X X X Extracts X X X X ..... l. Thus, the appeal is allowed with consequential benefits - decided in favor of assessee. - Ex.Appeal No. 53601/14, 53400/14 - FINAL ORDER NOS.70819-70820/2016 - Dated:- 22-4-2016 - Mr. Anil Choudhary, Member (Judicial) Shri Vikram Kaushik, Asstt. Commr. (A.R.) for the Respondent Shri Rakshit Verma, Advocate for the Respondent (s) ORDER Both the assessee and Revenue have filed these cross appeals arising out of order dated 21.03.2014 passed by the Commissioner (Appeals) Central Excise and Service Tax, Ghaziabad. 2. The Revenue have filed an application for withdrawal of their Ex.Appeal No.E/53400/2014-SMB under the litigation policy. Thus, the appeal of Revenue is disposed off as withdrawn, without entering into t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Education Cess is levied on CVD and the other on aggregate duty of Customs. It further appeared that Cenvat credit on both the cess, are not allowable to the appellant. It further appeared that the appellant have taken wrong Cenvat credit of education cess and S.H.E Cess on Excise duty levied, at aggregate duty of Customs under Section 3 of the Central Excise Act, 1944. 4.2 Further, the SCN dated 20/1/12 states that on being pointed out to the appellant that they have taken inadmissible Cenvat credit totalling ₹ 10,90,087/-, the appellant admitted in part and debited an amount of ₹ 1,22,740/- in RG-23A on 17/11/10 along with interest and further deposited vide challan G.R.7 for ₹ 6787/- on 12.05.2011 and ₹ 36 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of ₹ 1,29,728/- observing that the appellant has admitted in the appeal that they have availed excess credit of ₹ 1,03,213/- (as mentioned in Annexure B of SCN) of BED against invoices where the excess duty had been paid by the supplier-EOU as per Sl.No.2 of Notification No.23/2003-CE (NT) and contended that the appellant has already debited an amount of ₹ 1,22,740/- in this regard, which has been appropriated by the Additional Commissioner. He further observed that besides the amount of ₹ 1,03,213/- the disputed demand also includes excess amount of Cenvat credit amounting to ₹ 26,515/- as mentioned in Annexure A of the SCN pertaining to credit of CVD availed over and above the CVD leviable as per relevant inv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es upon the manufacturer taking such credit. The fact of availment of excess credit was detected by the Audit team. The appellant had not brought any evidence on record in this appeal to show that availment of excess credit was in the knowledge of the Department prior to the said audit of the records. Accordingly, he upheld the finding that the appellant has suppressed the facts and contravened the provisions of Rule 3 of CCR with intent to avail inadmissible credit and accordingly, held the extended period of limitation is invocable. 6. The appellant assessee being aggrieved have carried the matter before this Tribunal. 7. The ld. Counsel, Mr.Rakshit Verma, Ld. Advocate, for the appellants, urges that none of the elements for exten ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... considered the rival contentions and on perusal of the records, I hold that the appellant had made appropriate disclosures in the returns filed with the Revenue and as such, no case of suppression or contumacious conduct is made out against the appellant. Accordingly, I hold that the extended period of limitation is not attracted. Accordingly, I set aside the demand and penalty retained by the Commissioner (Appeals). So far the Commissioner (Appeals) has deleted the demand and penalty to that extent, there is no interference by this Tribunal. Thus, the appeal is allowed with consequential benefits. 10. To sum up, the appeal of the assessee being Ex. Appeal No. E/53601/14-SMB is allowed and the Ex.Appeal No.E/53400/14-SMB by Revenue st ..... X X X X Extracts X X X X X X X X Extracts X X X X
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