TMI Blog2019 (8) TMI 1834X X X X Extracts X X X X X X X X Extracts X X X X ..... LKATA VI VERSUS M/S ITC LTD. [ 2013 (3) TMI 44 - CESTAT KOLKATA] has observed that if the assessee has disclosed availment of CENVAT Credit in ER-1 returns, suppression of facts cannot be alleged and demand beyond normal period is not sustainable. Thus, the impugned SCN dated 23.02.2012 issued by invoking extended period of limitation for duty demand for the period February 2007 to March 2008 is hopelessly barred by limitation. On merits also, there are force in the submission of the appellant that even if it is assumed that the process undertaken by the appellant did not amount to manufacture, the question of levy of duty on the final product did not arise and therefore, no duty demand is sustainable otherwise also. The Ld. Commissioner in his order, did not follow the Gujarat High Court s decision in COMMISSIONER OF CENTRAL EX. CUS., SURAT-III VERSUS CREATIVE ENTERPRISES [ 2008 (7) TMI 311 - GUJARAT HIGH COURT] for the only reason that in similar circumstances, the Department has filed an appeal before the Hon ble Bombay High Court against the Tribunal s decision in NRB BEARINGS LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE, MUMBAI-II [ 2006 (10) TMI 74 - CESTAT, MUMBAI ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of around 10,200-10,400 Kcal/Kg with low sulphur content and low viscosity. Based on the investigation and statements obtained from the buyers, Show Cause Notice dated 23.02.2012 (SCN) was issued by invoking extended period of limitation for the period from February 2007 to March 2008, wherein it was alleged that appellant availed and utilised inadmissible Cenvat credit to the tune of Rs.2,16,71,185/- on furnace oil by deliberately mis-declaring the process of mixing and blending as manufacture of fuel oil . The said SCN culminated into adjudication order dated 20.04.2012 against which the assessee is in appeal before us. 3. Sri Rajeev Agarwal, CA, appeared for the appellant and Sri D Haldar, Ld. Asst. Commissioner, appeared for the Revenue. 4.1 The Learned CA appearing on behalf of the appellant assessee submitted that the process undertaken by the appellant by way of blending and mixing Heavy Creosote Oil with the Furnace oil procured by them, a new commodity namely Fuel oil comes into existence which amounts to manufacture . He also submitted that the said fuel oil manufactured by them had a high calorific value of around 10200- 10400 Kcal/Kg because of which th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t be disputed at the recipient assessee s end when payment of duty / tax has not been disputed at the supplier s / vendor s end. He placed reliance on the decision of the Hon ble Punjab and Haryana High Court in the case of CCE, Chandigarh vs. Ranbaxy Labs Ltd 2006 (203) ELT 213 (P H), wherein the Hon ble High Court held that if the duty was legally not payable, credit cannot be denied to the recipient of goods when admittedly the duty has been collected by the Revenue. He also relied on the decisions in case of S.K. Industries vs. CCE, Indore 2007(210)ELT 104(Tri-Del) which was confirmed by the Apex Court as reported in 2012(277)ELT A56(SC), CCE vs. Tiemac Snack Food Pvt Ltd 2002(143)ELT 325(Tri-Del), Andhra Pradesh Heavy Machinery Engg. Ltd vs. CCE Raipur 2002(149) ELT 480 (Tri-Chennai). 4.5 The Ld. CA strongly contested the demand on the aspect of time bar. He submitted that the appellant vide letter dated 01.02.2006 had specifically informed the department about manufacture of Fuel Oil and also that the appellant shall avail credit against such inputs to be utilised for manufacturing of Fuel Oil. Since the fact regarding the availment of credit was always in the knowledg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s wrongly observed by the Ld. Commissioner. Moreover, we find that the assessee has duly shown the availment of credit in ER-1 returns which fact is not in dispute. The Tribunal in CCE v. ITC Ltd. 2013 (31) taxmann.com (Kol-CESTAT) has observed that if the assessee has disclosed availment of CENVAT Credit in ER-1 returns, suppression of facts cannot be alleged and demand beyond normal period is not sustainable. Relevant extract of the above decision is as below: 5. Heard both sides and perused the records. The limited issue involved in the present case for determination is, whether the demand for recovery of cenvat credit availed on inadmissible input services, is barred by limitation or otherwise. It is the case of the Revenue that the respondent had not disclosed the details of the input services in their monthly returns, resulting into suppression of facts and hence, extended period of limitation is applicable to the facts of the present case. I find that the ld. Commissioner (Appeals) had observed that since the respondent had been filing ER-1 returns regularly indicating the total amount of credit availed by them and nothing prevented the Department from calling for detail ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es through the order of the first appellate authority, it is apparent that the respondent has been held to be a manufacturer as defined in Section 2(f) of the Central Excise Act, 1944. The appellate authority has taken into consideration the activities carried on by the respondent-assessee. The Tribunal is justified in holding that if the activity of the respondent-assessee does not amount to manufacture there can be no question of levy of duty, and if duty is levied, Modvat credit cannot be denied by holding that there is no manufacture. 7. In the aforesaid set of facts and circumstances of the case in light of concurrent findings of fact recorded after appreciating the evidence on record by both Commissioner (Appeals) and the Tribunal, no question of law, much less a substantial question of law, arises out of impugned order of Tribunal. The appeal is accordingly dismissed. The above High Court s decision has been upheld by the Hon ble Supreme Court which is reported in 2009 (243) ELT A120. Further, The Hon ble Karnataka High Court in the case of CCE, Bangalore v. Vishal Precision Steel Tubes Spirits Pvt. Ltd. 2017 (349) ELT 686 (Kar.) relying of the above decision of Guj ..... X X X X Extracts X X X X X X X X Extracts X X X X
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