TMI Blog2017 (6) TMI 905X X X X Extracts X X X X X X X X Extracts X X X X ..... ent under sub-Section (2) of Section 35-G of the Central Excise Act, 1944 against the order dated 26/02/2016 passed by the Customs, Central Excise Service Tax Tribunal, New Delhi. Facts of the case reveal that the respondent - assessee M/s. Z Y G Pharma Pvt. Ltd., is a manufacturer of P. P. Medicaments falling under Chapter Heading No. 30 of the First Schedule to the Central Excise Tariff Act, 1985. The respondent - assessee is also availing CENVAT credit facility of duty paid capital goods received in the factory as well as service tax paid on services received. An audit was carried out in respect of records of the assessee and it was pointed out by the audit that the assessee has taken CENVAT credit of ₹ 36,90,921/- on prefabricated building items, doors and office furnitures under Chapter Heading No. 9406, 7308 and 9403 by treating them as capital goods during the period 2007-2008 to 2010-2011 and 2011-2012 upto December, 2011. A Show Cause Notice was issued on 23/4/2012 to the respondent - assessee and the assessee filed the reply in the matter. The Assessing Officer has finally passed an Order in Original on 14/11/2013 and a demand to the tune of ₹ 36,90,921/- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in the manufacture of capital goods which are further used in the factory of the manufacturer; but shall not include cement, angles, channels, Centrally Twisted Deform bar (CTD) or Thermo Mechanically Treated bar (TMT) and other items used for construction of factory shed, building or laying of foundation or making of structures for support of capital goods; Period w.e.f. 7.7.2009; Notification No. 16/2009-CE(NT) dated 7.7.2009 amended Rule 2(k) as under: In the CENVAT Credit Rules, 204 (hereinafter referred to as the said rules) in rule 2 in clause (k), in explanation 2 after the words factory of the manufacturer, the following shall be inserted namely:- but shall not include cement, angles, channels, Centrally Twisted Deform bar construction of factory shed, building or laying of foundation or making of structures for support of capital goods. Period 1.4.2011 onwards: Notification No. 3/2011-CE(NT) dated 1.3.2011 effective from 1.4.2011 amended the definition of inputs as under: (k) Input means (i) all goods used in the factory by the manufacturer of the final product; or (ii) any goods including accessories, cleared along with the final prod ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fice furniture falling under chapter heading No. 9406, 7308 9403 to the department and thus appears to have wilfully suppressed the fact with an intention to avail Cenvat credit wrongly. Thus, the extended period of 5 years as provided under proviso to Section 11A(1) of the Central Excise Act, 1944 appears to be invokable for recovery of Cenvat credit so wrongly taken by them as this was noticed during the udit of the records of the notice. Moreover, by availing such inadmissible credit as detailed in foregoing paras the Noticee contravened the provisions of Rule 2 3 of Cenvat Credit Rules, 2004 thus, rendered themselves for penal action under Rule 15(2) of the Cenvat Credit Rules, 2004 read with Section 11AC of the Central Excise Act, 1944. It is not in dispute that the respondent had been submitting its monthly returns clearly showing availment of the impugned credit. Thus it is incorrect to say that it did not disclose the fact of availment of Cenvat credit on the impugned goods. These returns do not require listing of the goods on which the credit has been taken and therefore the respondent cannot be held guilty of suppression on the ground that it had not listed the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l, the present appeal has been filed. This Court has carefully gone through the order passed by the Tribunal and in fact, the Tribunal has upheld the contention of the Department so long as CENVAT credit has been claimed in respect of the impugned goods. The only issue which is bothering the Department is imposition of penalty. The Division Bench of Gujarat High Court in the case of Commissioner Vs. Dynamic Industries Ltd., reported in 2014 (307) ELT 15 (Guj.) in paragraph 12 has held as under : 12. Accordingly, the substantial question of law raised in respect of the following three categories of service ie., (i) Customs House Agents Services, (ii) Shipping Agents and Container Services and (iii) Services of Overseas Commission is answered partly in favour of the assessee so far as aforesaid category nos. (i) and (ii) are concerned. Insofar as category No. (iii) ie., services of Overseas Commission, is concerned, the same is answered in favour of the Revenue and against the assessee. So far as present appeal is concerned, after extending the period of limitation under the proviso to Sec. 11 A and 11 AB of the Act, the Show Cause Notice is issued by the Joint commissioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellant. 8. Once full facts were disclosed, the normal period of limitation would be one year, whereas the proceedings are initiated after the expiry of a period of one year. Therefore, we do not find that the Tribunal has committed any error in observing that the demand was barred by limitation. In the aforesaid case also, as facts were fully disclosed and there was no suppression, it as held by the Division Bench that extended period of limitation is not invokable. A similar view has been taken in the following cases Cosmic Dye Chemicals Vs. CCE reported in 1995 (75) ELT 721 (SC); Simplex Infrastructures Ltd., Vs. CST reported in 2016 (42) STR 634 (Kar.); Gopal Zarda Udyog Vs. CCE reported in 2005 (188) ELT 521 (SC); Apex electricals Pvt. Ltd., Vs. UOI reported in 1992 (61) ELT 413 (Guj.); Unique Resin Industries Vs. CCE reported in 1995 (75) ELT 861 (T); CCE Vs. Chemphar Drugs and Liniments reported in 1989 (40) ELT 276 (SC); Padmini Products Vs. CCE reported in 1989 (43) ELT 195 (SC); Pushpam Pharmaceuticals Co. Vs. CCE reported in 1995 (78) ELT 401 (SC); Anand Nishikawa Co. Ltd., Vs. CCE reported in 2005 (188) ELT 149 (SC); CCE Vs. Pioneer Scientific Glass Works ..... X X X X Extracts X X X X X X X X Extracts X X X X
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