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TMI Blog2018 (5) TMI 1713X X X X Extracts X X X X X X X X Extracts X X X X ..... 4 [material period], the appellant split their input services into three categories, namely (A) input services used in dutiable goods; (B) input services used in exempted goods; and (C) input services used commonly in both, where availment is 100%, 0% and 54% respectively, based on previous years' turnover. In terms of Rule 6(3A)(iii) of the Cenvat Credit Rules (CCR) 2004, the element "G" of the formula represents Total input services credit availed during the month, for application in the formula to determine credit attributable to exempted goods/services. However, the appellant had adopted only the credit of common input services [element (C) above] instead of total input services credit availed [pertaining to A+B+C above] for "G", in Rul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7 and 8.1.10 of the impugned order squarely applied to the instant case; and that the malfeasance warranted the penalty imposed." The appellant contested Order-in-Original before the first appellate authority on merits as well as on limitation, after rejecting contentions, the Adjudicating Authority confirmed the demands with interest and imposed penalties; the first appellate authority upheld the Order-in-Original. 4. Ld. Counsel submits that the issue can be decided from limitation angle itself; the issue is regarding availment of Cenvat Credit which according to the revenue is irregularly, wrongly availed; the same was known to authorities and returns were filed and the records were audited, accordingly there cannot be a allegation of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Karnataka in the MTR Foods Limited has been followed by the various decision of Tribunal and the ratio is squarely applicable in the case in hand. I respectfully reproduce the ratio in paragraph No. 3 & 4 from the judgement in the case of MTR foods. "3. The learned counsel appearing for the Revenue submits that the defect was noticed in September, 2004, and the proceedings initiated on 25-09-2007 was well within the period of 5 years and therefore the Tribunal was not justified in setting aside the order on the ground of limitation. Section 11A on which reliance is placed reads as under: 11A. Recovery of duties not levied or not paid or short-levied or shortpaid or erroneously refunded. - (1) When any duty of excise has not been levied or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cion or wilful suppression of facts or contravention of any of the provisions of this Act or the Rules made there under with an intent to evade payment of duty by such person or his agent then 5 years is the period prescribed for initiating proceedings. 4. As is clear from the material on record, the returns were filed promptly. In the returns it is clearly mentioned that they availed credit under the aforesaid rules. The audit partly accepted the same. It is only in the second audit that they noticed the mistake and initiated proceedings. Therefore, in the light of the aforesaid facts none of the other conditions prescribed in the Proviso exists in this case to extend the period of limitation of 5 years. It is in this background the Tribu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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