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TMI Blog2018 (10) TMI 1536X X X X Extracts X X X X X X X X Extracts X X X X ..... nd 1703 1000 respectively of the Central Excise Tariff Act, 1985 and are availing the CENVAT credit of duty paid on input and input services under CENVAT Credit Rules, 2004. During the course of verification of the records for the period July 2013 to June 2014 by the Central Excise Audit officers, it was found that the appellant have wrongly availed the following CENVAT credit: Sl. No. Item description Amount 1 Cenvat credit availed on Education Cess & Higher Education Cess paid on customs duty (April 2004) Rs.2,10,845/- 2 Cenvat credit availed in excess of the duty passed on, in the dealer's invoice (April 2014) Rs.15,662/- 3 Service Tax credit on works contract related to construction of chimney (October 2013) Rs.35,020/- Tot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tment should not have issued the show-cause notice in view of Section 11A(2) of Central Excise Act, 1944. He also submitted that there is no suppression justifying the invocation of extended period of limitation as the appellants have disclosed the CENVAT credit in their monthly returns. He further submitted that the charge of suppression with intent to evade payment of duty has not been proved by the department and in the absence of suppression, extended period cannot be invoked. For this submission, he relied upon the following decisions. (i) CCE & ST, Tirupathi vs. Manishreni Ferro Alloys Pvt. Ltd.: 2016-TIOL-1640-CESTAT-HYD. (ii) Penna Cement Industries Ltd. vs. CCE and CCE vs. Penna Cement Industries: 2016-TIOL-1813-CESTAT-HYD. (i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 11A(2), the Department should not have issued the show-cause notice. Further, I find that in this case the department has not brought any material on record to show that there was suppression of fact with intent to evade duty. Further, in view of the Board's circular dated 18.8.2015, once the assessee has paid the duty along with interest and there is no suppression, then the proceedings shall be deemed to be concluded. In view of the above discussions, I am of the opinion that the impugned order imposing penalty is not sustainable in law and therefore, I set aside the penalty by allowing the appeal of the appellant.
(Operative portion of the Order was pronounced in Open Court on 22/10/2018) X X X X Extracts X X X X X X X X Extracts X X X X
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