TMI Blog2019 (2) TMI 1097X X X X Extracts X X X X X X X X Extracts X X X X ..... not file the duty-paying documents along with ER-1 returns and did not stated in the said returns that the CVD was paid through DEPB. There is no reference to any column or clause in the said ER-1 which requires an assessee to disclose the above information. In the absence of any requirement to disclose in the said returns, the factum of payment of CVD through DEPB, we are of the view that non-disclosure, by itself cannot be made the ground for invocation of extended period - the mere fact that the appellant had not stated in the ER-1 returns as regards payment of duty through DEPB cannot be adopted a valid ground to justifiably invoke the extended period of limitation. The demands having been raised beyond the normal period of limitation are barred - appeal allowed - decided in favor of appellant. - E/3014/2007-EX[DB] - FINAL ORDER NO.70310/2019 - Dated:- 19-2-2019 - MRS. ARCHANA WADHWA, MEMBER (JUDICIAL) And SHRI ANIL G. SHAKKARWAR, MEMBER (TECHNICAL) Shri R. Santhanam (Advocate) for the Appellant (s) Shri Mohd. Altaf (Asstt. Commr.) (A.R.) for the Revenue ORDER Per Mrs. Archana Wadhwa : The present appeal is being disposed of in terms of the o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d legal issue was settled in favour of the assessee. However Tribunal by referring to Hon ble Supreme Court decision in the case of CCE Vs. Sunwin Techno solution Pvt. Ltd. [2011 (21) S.T.R. 94 (S.C.)] rejected the appeal on merits. However, the Tribunal took into consideration the assessee s plea that demand was raised by invoking the longer period of limitation and by referring to the earlier decisions held that as there was confusion in the field on the disputed legal issue and by referring to the earlier decision of the Tribunal in the case of LNM Auto Industries Pvt. Ltd., the benefit of limitation was extended to the assessee. 5. Revenue being aggrieved with the said order of the Tribunal filed an appeal there against before the Hon ble Allahabad High Court, which stand disposed of by the Hon ble High Court vide its order dated 07.01.2014, setting aside the order of the Tribunal and remanding the matter for fresh decision in the light of the observations and directions contained in the said order. 6. The Hon ble High Court has taken into consideration the findings of the original adjudicating authority as also of Commissioner(Appeals) vide which the assessee s plea o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ormation is not suppression of facts unless it was deliberate to escape from payment of duty. In the background of the above declaration of law by the Hon ble Apex Court, we proceed to decide the point of limitation. 8. The Additional Commissioner while justifying the invocation of longer period of limitation has observed as under:- I find that Cenvat Credit was taken on the strength of the Bills of Entry under discussion in the months of 12/03 to 07/04. The ER-1 Returns and Cenvat Credit returns submitted by the party for these months do not reflect that the Additional Customs Duty (CVD) was paid through DEPB adjustments nor these returns show that Bills of Entry were submitted to the department. The self assessment memorandum Sl.No.7(a) of the aforesaid ER-1 returns submitted by the party declares that the information given in the return is true, correct and complete in every respect whereas material information relating to taking of Cenvat Credit on the strength of Bills of Entry on which additional duty of Customs (CVD) has been paid through DEPB adjustment has not been incorporated in either of the aforesaid returns. The party had also not submitted the aforementioned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rmation, by itself cannot be held to be a ground for invocation of extended period unless such non-disclosure was on account of any mala fide. In the present case there was no legal obligation on the assessee to disclose the requisite information in the ER-1 returns, in the absence of any clause or requirement in the said reports. As such the mere fact that the appellant had not stated in the ER-1 returns as regards payment of duty through DEPB cannot be adopted a valid ground to justifiably invoke the extended period of limitation. 10. In any case and in any view of the matter we note that during the relevant period there were decisions in favour of the assessee laying down that the CVD paid thorugh DEPB scrips is available as a credit to the importer. This was so held by the Tribunal in the case of Sesha Sayee Paper and Boards Ltd. v. C.C.E. [2007 (217) E.L.T. 562 as also in another case reported as 2008 (223) E.L.T. 616 (Tri.-Chennai). The said availability of credit was also upheld by the Hon ble Punjab Haryana High Court in the case of C.C.E. v. Nilkanth Rubber Mills [2010 (254) E.L.T. 203 (P H)] as also in the case of Madras High Court in Tanfac Industries Ltd. v. Asst ..... X X X X Extracts X X X X X X X X Extracts X X X X
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