TMI Blog2022 (11) TMI 148X X X X Extracts X X X X X X X X Extracts X X X X ..... SHE Cess was prohibited under the Rules. In the case of M/s Madura Industrial Textiles, [ 2013 (1) TMI 352 - GUJARAT HIGH COURT] , the Hon ble Gujarat High Court had considered the issue and ruled in favour of the assessee. The evidences on record do not show that the appellant had acted otherwise than in a bona fide manner. It is not disputed that the details regarding availment and utilization of the disputed credit had been disclosed in the appellant s Central Excise returns filed with the Department. The issue of purported illegal utilization of credit had come to the Department s knowledge as far back as in the year 2013 while conducting audit - there are no reason to sustain the invocation of extended period of limitation against the appellant. It is held that the purported disallowance of Cenvat Credit of Rs. 9,08,676/- against the appellant is illegal and unjustified. The confirmation of interest and equivalent penalty under Section 11AB/AA of the Act and Rule 15 of the Rules respectively is also held as unsustainable - Appeal is disposed of on the point of limitation. - Excise Appeal No.76068 of 2018 - FINAL ORDER NO. 75562/2022 - Dated:- 2-11-2022 - SHRI P.K.CH ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 19.02.2015 was issued, proposing recovery of Cenvat Credit of Rs. 9,08,676/- under Rule 14 of the Rules read with the proviso to Section 11A(1) of the Act, for illegal utilization of basic Excise Duty credit towards payment of E Cess and SHE Cess. The said show cause notice also proposed imposition of interest and equivalent penalty. e. The Appellant filed its reply dated 24.03.2015 against the aforesaid show cause notice and contested the proceedings. Written submissions dated 17.03.2016 were also filed before the adjudicating authority. f. Vide an Order-In-Original dated 08.06.2016 the adjudicating authority confirmed the purported demands against the Appellant. g. Aggrieved by the aforesaid adjudication order the Appellant preferred an appeal before the Commissioner (Appeals) which came to be rejected vide the impugned Order-In-Appeal dated 28.12.2017. h. Dissatisfied with the above Order-in-Appeal dated 28.12.2017, the appellant filed the present appeal before this Tribunal. 2. The Ld.Advocate for the Appellant assessee made the following contentions and submissions: I. The Commissioner (Appeals) failed to appreciate that Rule 3 of the Rules nowhere pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d of limitation could not have been invoked in the instant case. Firstly, the show cause notice dated 19.02.2015 did not even allege suppression or any specific default on part of the appellant-assessee warranting invocation of the extended period of limitation. In Collector of Central Excise -versus HMM Ltd., 1995(76) ELT 497(SC), Larsen Toubro Ltd. versus- Commissioner of C. EX., Pune-II, 2007(211), ELT513(SC) and Kaur Singh versus- Collector of Central Excise, New Delhi, 1997(94) ELT 289(SC), the Hon ble Supreme Court has emphasized that the extended period of limitation is not invokable unless the show cause notice has specifically stated as to which of the various acts or omissions mentioned in the proviso to Section 11A(1) of the Act has been committed, which is also required to be stated as per the principles of natural justice. Secondly, the case set up in the show cause notice could not have been improved in any manner during adjudication. Thirdly, all the necessary details regarding availment and utilization of Cenvat Credit had been disclosed in the monthly Central Excise returns duly filed by the appellant. In such circumstances, there was no rational at all for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion. Thus, there being no clear and explicit allegation against the appellant in the show cause notice with regard to suppression of facts or fraud or wilful mis-representation or intentional evasion of duty, it automatically follows that the purported show cause proceedings against the appellant were barred by limitation. 7. I also find that the assessee could not have been faulted for its conduct, even if it were to be held that cross utilization of basic Excise Duty credit for payment of E Cess and SHE Cess was prohibited under the Rules. In the case of M/s Madura Industrial Textiles, supra, the Hon ble Gujarat High Court had considered the issue and ruled in favour of the assessee. The appellant had specifically relied upon the said decision of the Hon ble Gujarat High Court in its reply to the audit proceeding. The issue raised was, at best, debatable and involved interpretation of various provisions of the Rules and the Act. It is also to be noted that the appellant s stand was sought to be rejected at the time of adjudication by placing reliance upon the decision of M/s Bharat Box Factory Ltd., supra. However, it cannot be accepted that the said decision of Bharat Box Fa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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