TMI Blog2021 (11) TMI 781X X X X Extracts X X X X X X X X Extracts X X X X ..... eged irregular availment of inputs service tax credit taken on common inputs service ₹ 2,54,199/- was reversed in August, 2016 itself immediately after the audit team raised the objection. Also, it is admitted fact that appellant carried much more balance in their CENVAT credit account when they reversed the aforesaid amount, due to which the authorities below have accepted that there is no liability of the appellant to pay interest thereupon. Whether the case in hand was merely a case of wrong apportionment of credit between the appellants both units, a bonafide clerical error or it was a case of intentional malafide intention to evade payment of duty? - HELD THAT:- Though the amount was not proportionately bifurcated between bo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cal error, they have definitely got wrong while still imposing penalty. Appeal allowed - decided in favor of appellant. - Excise Appeal No. 30595/ 2019 - FINAL ORDER NO. 30343/2021 - Dated:- 9-11-2021 - HON BLE MRS RACHNA GUPTA, MEMBER (JUDICIAL) Shri R Muralidhar, Advocate for the Appellant Shri L V Rao, Authorised Representative for the Department ORDER PER RACHNA GUPTA The Order-in-Appeal No. 002-003-19-20 dated 16.09.2019 has been assailed vide the impugned appeal. The appellants herein are engaged in the manufacture of bulk drugs and are availing the CENVAT Credit on inputs, capital goods and input services. They are simultaneously utilising the same for payment of duty on their final products. During t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an amount of ₹ 11,64,424/-. The appellants were eligible for most of said credit. Still they reversed the same in August, 2016 itself and have also reflected in the monthly ER 1 return of August, 2016. At the time of reversal, they were having much more balance in their CENVAT Credit account. As such, no interest was paid by them with respect to the demand confirmed for ₹ 4,75,168/-. It is submitted that same was only a cause of wrong operation of the credit between the appellants second unit and it was not at all the case of non eligibility of CENVAT credit for the appellant. The only mistake committed was failure to bifurcate the available credit between both the units, no intention to evade the money of the Government exchequ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sentative submitted that it is not disputed by the appellant that they had irregularly availed the CENVAT credit amounting to ₹ 4,75,168/-. Initially infact they have reversed the same after it was being pointed out by the Department. It is impressed upon that this fact is sufficient to hold that the appellant were aware of the wrong been committed by them. But still they did not undo the same till it was pointed out by the Department. The said act is sufficient to reflect the intentional evasion on the said act and the non disclosure of such transaction to which the appellants alone were responsible have to be considered as the one with an intention to evade payment of tax. Accordingly, Rule 15(2) of CCR, 2004 gets attracted along wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CENVAT credit account when they reversed the aforesaid amount, due to which the authorities below have accepted that there is no liability of the appellant to pay interest thereupon. 7. The only issue remains now is as to whether the case in hand was merely a case of wrong apportionment of credit between the appellants both units, a bonafide clerical error or it was a case of intentional malafide intention to evade payment of duty. Though the amount was not proportionately bifurcated between both the units of the appellants but simultaneously it is an admitted fact that the amount of ₹ 2,54,199/- was not further distributed to the second unit of the appellant despite being claimed by the first unit. So the eligibility of claim of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ELT 385]. No doubt tax scheme is self assessment scheme and the onus lies upon the assessee to disclose the information to the department as has been impressed upon by the department but each non disclosure cannot be called as the suppression, that too with malafide intent to evade payment of duty. It is only in this case that extended period of limitation can be invoked and the penalty can be imposed. Hon ble Apex Court in the case of Continental Foundation Jt. Venture vs. CCE reported in [2007 (216) ELT 177(SC)] has held that something positive other than mere inaction or non-payment of duty is required for invoking extended period under proviso to section 11 A (1) of Central Excise Act and that suppression means failure to disclose ..... X X X X Extracts X X X X X X X X Extracts X X X X
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