TMI Blog2017 (6) TMI 679X X X X Extracts X X X X X X X X Extracts X X X X ..... ng the ER-1 returns regularly, in which the assessee has been disclosing the availment of CENVAT credit and the department did not raise any objection and it is only during audit for the first time the objection was raised and thereafter also the department did not issue the show-cause notice within a period of one year. Appeal dismissed - decided against Revenue. - E/20067/2015-SM - 20888/2017 - Dated:- 8-6-2017 - Mr. Shri S. S Garg, Judicial Member Mr. Mohd. Yousaf, AR For the Appellant Shri V. B. Gaikwad, Advocate For the Respondent ORDER Per: S. S. Garg The present appeal has been filed by the Revenue against the impugned order dated 23.9.2014 passed by the Commissioner (A) whereby the Commissioner (A) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the ground of limitation as this ground was ignored and was not discussed by the Commissioner (A). On remand, the Commissioner (A) has passed the impugned order allowing the appeal of the respondent. The Commissioner (A) has passed the impugned order on merit as well as on limitation whereas as per the remand order, the direction was to consider the limitation alone . Now aggrieved by the said order, the Revenue has filed the present appeal. 3. Heard both the parties and perused the records. 4. Learned AR for the Revenue has submitted that the impugned order is not sustainable in law in view of the decisions rendered by the High Court and the Supreme Court. He further submitted that in the present case, the original authority has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le - HELD : Termini from which period of one year or five years is computed is relevant date as defined in sub-section (3)(ii) of Section 11A of Central Excise Act, 1944 - Concept of knowledge of departmental authority entirely absent - Importing of said concept in Section 11A(i) ibid or the proviso ibid would tantamount to rewriting statutory provision and rendering defined term relevant date nugatory - Reasoning, that once knowledge acquired by Department there is no suppression, fallacious as once suppression admitted, merely because Department acquires knowledge of irregularities, suppression not obliterated - Impugned Tribunal order introducing novel concept of date of knowledge contrary to provisions of Section 11A ibid, hence quashed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the year 2007 itself and no further investigation/enquiry has been made in the matter and still the show cause cum demand notice has been issued after lapse of twenty long months approximately. Hence, as per the legal position obtaining in this regard, the SCN is time barred. The law is well settled in this regard. I rely on the cases of (1) CCE Vs. MIDCO Ltd.: 2011 (274) ELT 463 (Tri.) , wherein it was held as follows: Demand - Limitation - Duty short-paid - Expenses for freight, insurance, raw material not accounted in invoices - Show cause notice demanding dues from 2000-2001 onwards issued on 15-2-2005 - Audit report made available in 2002 and RT-12 and ER-1 returns filed periodically without any delay - Submission of invoice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red in this regard. His non-application of mind and judicial indiscipline is also evident, as discussed. 5.1 Learned counsel further submitted that no investigation was carried out by the department before the issue of show-cause notice and show-cause notice is nothing but the reproduction of the audit report without application of mind and without carrying further investigation by the department. In addition to case laws which have been relied upon while arguing the appeal of the assessee, the learned counsel has also relied upon the following decisions: M/s. Madras Cements Ltd. Vs. CCE: 2016 (8) TMI 488 M/s. Sangam India Ltd. Vs. CCE: 2016 (343) ELT 1057 M/s. Singhal Enterprises Pvt. Ltd. Vs. CCE: 2016 (341) ELT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 11A proviso cannot be invoked because there was no suppression of fact and there were conflicting decisions and the judgments of the Tribunal was upheld by the Gujarat High Court reported in 2016 (44) STR J60. Further, I also find that assessee has been filing the ER-1 returns regularly, in which the assessee has been disclosing the availment of CENVAT credit and the department did not raise any objection and it is only during audit for the first time the objection was raised and thereafter also the department did not issue the show-cause notice within a period of one year. Therefore, considering the ratios in various case laws relied upon by the Commissioner (A), I am of the view that there is no infirmity in the order passed by ..... X X X X Extracts X X X X X X X X Extracts X X X X
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