TMI Blog2021 (12) TMI 1147X X X X Extracts X X X X X X X X Extracts X X X X ..... D THAT:- The period in dispute involved in this case is October 2005 and the show cause notice was issued on 09.03.2009 i.e. much after the normal period prescribed under Section 11A ibid. Insofar as invocation of the proviso to Section 11A ibid is concerned, it has been mandated that only in the eventuality of happening of fraud, collusion, wilful mis-statement etc., such proviso clause can be in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (10) TMI 388 - DELHI HIGH COURT] has held that when conflicting views were taken with regard to interpretation of Notification etc., the proviso clause appended to Section 11A ibid cannot be invoked, justifying recovery of the short levied duty etc. beyond the normal period of limitation. The department in this case has not specifically adduced any evidence to substantiate that the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the present dispute is no more res integara, in view of the Larger Bench decision of this Tribunal in the case of BDH Industries Ltd. Vs. Commissioner of C. Ex. (Appeals), Mumbai-I, reported in 2008 (229) E.L.T. 364 (Tri.-LB). The appellant has filed the present appeal contending that the extended period of limitation contained in the proviso to Section 11A of the Central Excise Act, 1944 cannot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... concerned, it has been mandated that only in the eventuality of happening of fraud, collusion, wilful mis-statement etc., such proviso clause can be invoked and not otherwise. On perusal of the case records, I find that the availment of suo moto Cenvat Credit was highly disputed at the material time, which was subsequently settled by the Larger Bench of the Tribunal in the case of BDH Industries ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... specifically adduced any evidence to substantiate that the appellant had really indulged into fraudulent activities in wrongly availing the Cenvat Credit. Hence, I am of the considered opinion that the extended period of limitation invoked in this case for initiation of show cause proceedings cannot stand of judicial scrutiny. 4. Therefore, the impugned order dismissing the appeal of the appel ..... X X X X Extracts X X X X X X X X Extracts X X X X
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