TMI Blog2008 (4) TMI 97X X X X Extracts X X X X X X X X Extracts X X X X ..... R, for the Appellant. Shri Pawan Kumar, Advocate, for the Respondent. [Order] - This appeal by the Revenue arises from the order-in-appeal of Commissioner (Appeals), Central Excise, Ludhiana dated 26-12-2005 setting aside the order-in-original of the Adjudicating authority dated 25-8-2005. By the said order, the Assistant Commissioner as Adjudicating authority disallowed credit of Rs. 1,83,445/- and directed recovery of the amount under Rule 57-I(1)(ii) of the Central Excise Rules, 1944 read with Section 11A of the Central Excise Act, 1944 with interest under Section 11AB of the Act read with Rule 57-I(5) of the Rules, 1944. Penalty of equal amount was also imposed under Rule 173Q(1)(bb) of the Central Excise Rules 1944 read with S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... after the excise work of M/s. HBR Steel Corporation, and Anil Jam were also recorded. Statements of a few transporters, namely, Sanjay Mehta, Nachttat Singh and Baldev Singh were also recorded. They denied that their vehicles were used in transporting the goods against invoice nos. 10 12 dated 12-4-2000, 17 dated 17-4-2000 and 43 dated 25-4-2000, respectively. The investigation revealed that as many as 133 vehicles allegedly used in transporting goods were, in fact, gypsy, three wheeler, motor cycles, scooters, motor cars, oil tankers and so on, or non-existent and they apparently would not have been used for transporting goods. It may be mentioned here that the particulars and description of the vehicles were verified from the Transport ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctive statements clearly denied the use of their vehicles for transporting goods from M/s. HBR Steel Corporation to M/s. Indian Special Castings (P) Limited i.e. appellant herein, 5. Counsel for the respondent tried to take shelter under the plea of limitation. It was submitted that the material facts became known to the Department on or about 7-2-2001 in course of search of the business premises and, therefore, show cause notice could not be issued on 23-3-2005 by invoking the extended period. The submission has been noticed only to be rejected. Section 11 A of the Central Excise Act envisages issuance of show cause notice within the period one year from the relevant date as defined therein. Where the duty of excise has not bee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase involved illegal availment of Modvat credit by fraudulent means. When the fraud is established, whether the material facts had become known to the Department on or about 7-1-2001, was totally irrelevant. The Department was well within its power to issue show cause notice within the period of five years, and, therefore, show cause notice dated 23-3-2005 i.e. within five years was within the period of limitation. I thus do not find any substance in the submission that the proposed action was time-barred. 7. Counsel also submitted that even if it is accepted that no transportation took place by the vehicles specified in the show cause notice, it cannot be said that the movement of goods covered by other invoices too was fictitious. The ..... X X X X Extracts X X X X X X X X Extracts X X X X
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