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2020 (3) TMI 149

..... cture of railway wagons, but instead transferred them to their Sister Unit at Sodepur after reversing the CENVAT Credit - extended period of limitation. Case of Department is that while they availed CENVAT Credit on both the CVD and SAD they have reversed only the CVD and they have not reversed the credit of SAD availed by them. HELD THAT:- It is not in dispute that the appellant assessee availed CENVAT Credit on the imported wheel sets in respect of both the CVD and SAD paid by them. It is not in dispute that against the same Bills of Entry some wheel sets were cleared on payment of duties and same were cleared under DEEC without payment of duty and it is not possible to separate duty paid goods from the goods cleared under DEEC. Therefore .....

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..... ce. Therefore revenues appeal is liable to be rejected. The appeal is remanded to original authority for the limited purpose of calculation of the amount of CENVAT Credit to be reversed for the normal period of limitation - appeal allowed by way of remand. - Excise Appeal Nos. 521 of 2010, 624 of 2010 - Final Order No. 75327-75328/2020 - 2-3-2020 - HON BLE SHRI S.S. GARG, MEMBER(JUDICIAL) AND HON BLE SHRI P.V. SUBBA RAO, MEMBER(TECHNICAL) Shri Pulak Saha, C.A. And Ms. Dimple Jogani, C.A. for the Appellant assessee Shri H.S. Abedin, Authorized Representative for Department. ORDER PER P.V. SUBBA RAO : Appeal No. E521/2010 is filed by the appellant assessee. while Appeal No. E 624/2010 has been filed by the revenue against the same impugned Or .....

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..... manding an amount of ₹ 63,40,120.00 equal to the credit of SAD availed by them along with interest under Rule 14 of CENVAT Credit Rules 2004. It was also proposed to impose a penalty under Rule 15 of CENVAT Credit Rules 2004 read with Section 11 A C of the Central Excise Act 1994. 5. After following due process, the Learned Commissioner, by the impugned Order, confirmed the demand along with interest as proposed. He also imposed a penalty of equal amount under Rule 15 (2) of CENVAT Credit Rules 2004 read with Section 11AC of the Central Excise Act 1944. The Assessee is aggreieved by this Order confirming the demand and also imposing the penalty. Revenue is aggrieved by the fact that no penalty has been imposed under Rule 15 (1) of the .....

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..... Even if it is held that they were required to reverse the CENVAT Credit, it cannot be alleged that they had an intention to evade payment of duty since the entire exercise is revenue neutral. Whatever CENVAT was reversed by them was taken as credit by their sister unit. For this reason extended period of limitation cannot be invoked for raising the demand. iii. For the same reason, the penalty imposed under Rule 15 (2) of CENVAT Credit Rules 2004 read with Section 11 AC of the Central Excise Act 1944 is liable to be set aside. (iv) With respect to the appeal filed by the Revenue he would argue that there is no case for imposition of penalty under Rule 15 (1) of CCR 2004. This Sub - Rule was not invoked in the SCN at all. During the period .....

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..... mit that it is not the revenue which has decided that the goods which were transferred were duty paid and CENVAT availed. The assessee themselves who have reckoned the transferred wheel sets as duty paid and CENVAT availed. Therefore, they have reversed the CENVAT Credit availed on the goods but only partly and the demand is with respect to the nonreversed part of the CENVAT Credit. He would, therefore, argue that the demand has been correctly confirmed and the penalty has been correctly imposed. 8. We have considered the argument on both sides and perused the records. It is not in dispute that the appellant assessee availed CENVAT Credit on the imported wheel sets in respect of both the CVD and SAD paid by them. It is not in dispute that a .....

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..... ty in the impugned order. 10. However, we had find force in the argument of the assessee that their sister unit gets credit of the amount of CENVAT Credit reversed by the appellant and therefore no malafide can be attributed to them. For extended period of limitation to be invoked, there must be fraud or collusion or willful misstatement or suppression of facts or violation of the provisions of the Act or Rates with an intent to evade payment of duties. We find none of these elements in the present case. For this reason, we find that extended period of limitation under Section 11 (A) cannot be invoked. For the same reason, we also find that the imposition of penalty under Rule 15 (2) of CENVANT Credit Rules 2004 read with Section 11 A C of .....

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