TMI Blog2022 (1) TMI 1121X X X X Extracts X X X X X X X X Extracts X X X X ..... ough these returns were filed in May 2017, the Show Cause Notice has been issued only two years later, invoking the extended period of limitation - there is no positive act of suppression established by the Department to prove that there is any wilful suppression of facts. The demand raised invoking the extended period of limitation cannot sustain and requires to be set aside - The appeal is allowed on the ground of limitation. - Excise Appeal No. 40628 of 2021 - FINAL ORDER NO. 40008/2022 - Dated:- 27-1-2022 - MS. SULEKHA BEEVI C.S., MEMBER (JUDICIAL) Shri N. Viswanathan, Advocate for the Appellant Ms. K. Komathi, Authorized Representative for the Respondent ORDER Brief facts of the case are that the appellant is engaged in the manufacture and clearance of accessories of tractors, grease and lubricants. During the course of audit of ER-1 returns conducted by the Officers of the G.S.T. and Central Excise, Audit-I Commissionerate for the month of February 2015, it was noticed that the appellant was having CENVAT Credit closing balance of ₹ 3,70,471/- on account of Excise Duty, ₹ 5,60,612/- on account of Education Cess and ₹ 2,78,301 on acc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... b-rule (7) to Rule 3 of the CENVAT Credit Rules, 2004, which permitted utilization of the credit of Education Cess and Secondary and Higher Education Cess paid on inputs and input services by the manufacturer of final products on or after the first day of March 2015. The amendment inserted the following three provisos, which are as under: Provided also that the credit of Education Cess and Secondary and Higher Education Cess paid on inputs or capital goods received in the factory of manufacture of final product on or after the 1st day of March, 2015 can be utilized for payment of the duty of excise leviable under the First Schedule to the Excise Tariff Act: Provided also that the credit of balance fifty per cent. Education Cess and Secondary and Higher Education Cess paid on capital goods received in the factory of manufacture of final product in the financial year 2014-15 can be utilized for payment of the duty of excise specified in the First Schedule to the Excise Tariff Act: Provided also that the credit of Education Cess and Secondary and Higher Education Cess paid on input services received by the manufacturer of final product on or after the 1st day of March, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Credit to the tune of ₹ 8,39,913/- was utilized for the payment of Duty only in May 2017 when the Central Excise Act was repealed and replaced by the G.S.T. law; as the appellant declared the utilization of the credit in its ER-1 returns, the allegation of the Department that the appellant has wilfully suppressed facts with intention to evade payment of Duty is without any factual basis. He adverted to the ER-1 returns in page numbers 85 to 92 of the Appeal Paper-book. That as per the returns, the total Duty payable on tractor parts cleared during the said month of May 2017 is ₹ 1,49,89,838/- (Column No. 4 of the return). In the return, in Column No. 5, which is meant to provide CENVAT details, the appellant has shown that out of the total credit of ₹ 3,39,23,423/-, an amount of ₹ 1,49,89,838/-, which included Education Cess and Secondary and Higher Education Cess credit of ₹ 8,27,068/-, was utilized for payment of Excise Duty. That the appellant having declared the utilization of the Cess credit for the payment of Duty in their ER-1 returns, the Show Cause Notice issued after two years alleging suppression of facts with intent to evade payment of duty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... A similar view has been taken by the Tribunal in the case of M/s. The Ramco Cements Ltd. (supra) and the relevant portion of the said order is reproduced as under: 6. I have considered the arguments of both sides and perused the records. There is no dispute on the facts of the matter or regarding the rule position as it existed during the relevant period. The cenvat credit in question was credit of education cess and secondary and higher education cess lying in balance with the appellant on 01.03.2015. Prior to this date this could be utilised only for payment of education cess and secondary and higher education cess. The appellant could not use this credit for this purpose as these cesses were abolished. Notification No. 12/2015 amended Cenvat Credit Rules 2004 by inserting three provisos to Rule 3(7)(b) enabling utilisation of credit of education cess and secondary and higher education cess in respect of inputs received after 01.03.2015 for payment of basic excise duty. However, the balance lying in credit was not covered by this notification also. Learned consultant was correct in arguing that they lose this amount, if they cannot utilise it for payment of basic excise duty ..... X X X X Extracts X X X X X X X X Extracts X X X X
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