TMI Blog2019 (8) TMI 911X X X X Extracts X X X X X X X X Extracts X X X X ..... verse is not true, meaning thereby that the assessee was not acting mala fidely nor had supressed any fact or mislead the department while availing the credit for an item which was held to be available as eligible to avail credit by the CESTAT itself. If the law was subsequently declared in favour of the Revenue by the High Court that would not relate back to the period of assessment to brand the assessee's action of availing credit as mala fide - Therefore, the present is not a case where the Revenue would be entitled to invoke the provisions of Section 11A of the Act, 1944 read with Section 73 of the Act, 1994 as there is no foundation for invoking the provision. The substantial question in favour of the assessee and against th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... open the proceedings was within the permissible period under Section 11A of the Central Excise Act, or under Section 73 of the Finance Act; of which latter provision was not referred by the Department while initiating or carrying forward the proceedings? 3. The period involved in this appeal is April, 2009 to March, 2011. During this period the appellant availed the CENVAT credit to the tune of ₹ 99,21,728/- on service tax on freight paid on outward transportation up to the place of removal. There were other credits availed by the appellant, which has been disallowed by the Commissioner and thereafter, by the CESTAT, however, the other demands are not in question before us. We are only concerned with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e substantial question of law on submission that the appellant was fully aware that the subject activity was not an activity relating to business and yet availed the credit, therefore, he himself misled the authorities for availing the credit, hence Section 11A of the Act, 1944 read with Section 73 of the Act, 1994 has rightly been invoked. 7. Having heard learned counsel for the parties and on perusal of the orders passed by the larger Bench of the CESTAT in ABB Ltd. (supra) and thereafter, the High Court of Karnataka's order in the said matter (Commissioner of C.Ex. S.T., LTU, Bangalore v ABB Limited 2011 (23) STR 97 (Kar.) ), we are convinced that the appellant was not guilty of acting mala fidely or supress ..... X X X X Extracts X X X X X X X X Extracts X X X X
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