TMI Blog2019 (3) TMI 181X X X X Extracts X X X X X X X X Extracts X X X X ..... art of the Appellant. In the present case, none of the authorities below have brought out any evidence on record to substantiate the allegation of suppression of fact or willful default on the part of the Appellant. All the transactions were duly reflected in excise return and this itself support the submission of the Appellant that there was no intention on the part of the Appellant to deliberate suppress any information with intention to evade payment of duty. Mensrea or malafide intention is necessary ingredients for invoking the extended period and also for imposing penalty - also, it is clear that immediately upon pointing out by the Audit, the Appellant reversed the entire Cenvat credit of ₹ 12,95,069/- with interest, without ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for export to Nepal and for supply to SEZ/EOU. The Audit Team conducted scrutiny, inspection and verification of records submitted by the Appellant. On verification it was found that the Appellant had taken and utilized Cenvat credit of ₹ 12,95,069/- against invoices of input services issued by one M/s. Monica Roofing. The said M/s. Monica Roofing was to provide services of erection, commissioning and painting of the pre-engineered building of the Appellant and the material for the said services was also to be provided by M/s. Monica Roofing. Admittedly after getting the objection of Audit the Appellant deposited the entire duty amount along with interest, but despite that a show cause notice dated 08.01.2016 was issued to the Appella ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vat credit availed by the Appellant on disputed services were duly reflected in excise records and also in ER-1 and since there was no malafide intention to evade payment of duty there was no reason for the department to invoke extended period of limitation and the Appellant is not liable for penalty as well. Learned Authorised Representative reiterated the findings recorded in the impugned order and prayed for dismissal of appeal. 4. It is settled legal position that neither extended period of limitation can be invoked nor penalty is levied unless there is malafide intention on the part of the assessee to evade payment of duty. Therefore it is to be seen whether there is any suppression of fact or willful default on the part of the Appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t reversed the entire Cenvat credit of ₹ 12,95,069/- with interest, without even waiting for show cause notice and this itself establishes that it is a case of bonafide mistake and there was no intention to evade duty. 5. So far as penalty under Section 11AC of the Central Excise Act 1944 is concerned, the same has been considered by the Hon ble Supreme Court in the matter of Union of India Vs Rajasthan Spinning and weaving Mills 2009 (238) ELT 3(SC) and the Hon ble Supreme Court after relying upon its earlier decision in the matter of Cosmic Dye Chemical Vs CCE 1995(75) ELT 721(SC) has laid down that suppression or mis-statement of facts must be willful to constitute a ground for the purpose of Section 11AC ibid and mis-statement ..... X X X X Extracts X X X X X X X X Extracts X X X X
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