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TMI Blog2017 (6) TMI 817X X X X Extracts X X X X X X X X Extracts X X X X ..... ey were issued show cause notice dt. 28.05.2008 on two counts and demand of Rs. 32,92,074/- in relation to intellectual property services and demand of Rs. 29,73,096/- towards wrong availment/utilization of Cenvat Credit. The matter was adjudicated and demand in relation to intellectual property was dropped and the other demand of Rs. 29,73,096/- was confirmed along with interest and imposition of penalty under Section 77 and 78 of Finance Act, 1994. Aggrieved from the same, the appellants have filed this appeal. 3. Ld. Advocate for the appellants submits that the demand is solely on account of the fact that the appellants have wrongly availed/utilized Cenvat Credit for the period 2004-2005 and 2005-2006 on the strength of the invoices, wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... defect. One such judgment is in the case of Allspheres Entertainment Pvt. Ltd. Vs. CCE, Meerut (supra) in which it has held as below:- "4. Again sub-rule (2) of Rule 9 of Cenvat Credit rules, 2004 states that no CENVAT Credit under sub-rule (1) shall be taken unless all the particulars as prescribed under the Central Excise Rules, 2002 or the service Tax rules, 1994, as the case may be, are contained in the said document. The proviso to this Rule states that if the said document does not contain all the particulars but contains the details of duty or service tax payable, description of the goods or taxable service, assessable value, Central Excise or Service Tax registration number of the person issuing the invoice, as the case may be, na ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... only procedural lapse or rather a curable defect. In such circumstances, I am of the view that denial of Cenvat Credit by the authorities below is not justified." Following the settled position of law, the Cenvat Credit is admissible to the appellants in the instant case. 7. We also find that the show cause notice which was issued in 2008 for the period of 2004-2005 and 2005-2006 nowhere invoked extended period in relation to the wrong availment/utilization of Cenvat Credit. In the absence of express invoking of extended period in the show cause notice, the demand is completely barred by limitation also. 8. In view of the above, the order of the Commissioner is not sustainable and the same is therefore set aside. 9. The appeal filed by ..... X X X X Extracts X X X X X X X X Extracts X X X X
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