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2019 (3) TMI 182

6 that there is a statement of the appellant dated 8.8.2003 wherein they have explained the procedure regarding availment of CENVAT credit, which means that the appellants have not suppressed the relevant information from the Department. Thereafter, the Department issued the show-cause notice on 1.4.2007 after almost four years after the disclosure of information by the appellant regarding their method of taking the CENVAT credit. - Once the department was aware of the procedure followed by the appellant for taking the CENVAT credit subsequently the department cannot allege suppression with intention to evade duty. It is settled law that mere failure to declare the information does not amount to willful mis-declaration or willful suppre .....

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ed the above facts with an intention to avail ineligible credit. Accordingly, a show-cause notice dated 10.4.2007 was issued demanding recovery of ₹ 19,47,928/- under Section 11A(1) of the Central Excise Act, 1944 read with Rule 12 of CENVAT Credit Rules, 2002, along with interest under Section 11AB ibid. Further, a penalty equivalent to the above amount under Section 11AC ibid was also proposed to be imposed. The original authority after due processes of law, confirmed the demand with interest under Section 11AB ibid and confirmed equal penalty under Section 11AC ibid. Aggrieved by the Order-in-Original, appellant filed appeal before the Commissioner (A), who rejected the appeal on time bar. Aggrieved by the dismissal of the appeal b .....

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to July 2003 whereas show-cause notice was issued on 1.4.2007 i.e., after almost 4 years after the disclosure of methodology of taking the credit. He further submitted that the Department has not brought any material on record to show that there was a suppression of fact with intent to evade payment of duty so as to invoke extended period of limitation. Appellant has also produced before me proof of excise duty paid documents to the extent of ₹ 8,30,068.28 whereas the Commissioner (A) has recorded that excise invoice to the extent of ₹ 5,10,847/- have been produced before him. The appellant has also relied upon the following decisions: CCE vs. Royal Enterprises: 2016 (337) ELT 482 (SC) CCE vs. Mahindra and Mahindra Ltd.: 2018 ( .....

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taking the CENVAT credit subsequently the department cannot allege suppression with intention to evade duty. It is settled law that mere failure to declare the information does not amount to willful mis-declaration or willful suppression. There must be some positive act on the part of the party to establish willful mis-declaration or willful suppression. Further, in the decisions cited supra, it has been held that mere omission to disclose would not amount to suppression of facts unless there was deliberate attempt to evade duty. In view of these facts, I am of the considered view that the entire demand in the present case is barred by limitation. Therefore, once I hold that the entire demand is barred by limitation, I need not decide the c .....

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