TMI Blog2023 (2) TMI 605X X X X Extracts X X X X X X X X Extracts X X X X ..... limitation and imposition of penalty are not imposable. Once there is no averment either in the SCN or impugned orders regarding the availment of benefits by suppression of fact or fraud, invoking extended period of limitation is not proper. The appeal is allowed on the ground of limitation without going into the merits of the case. - Central Excise Appeal No. 20250 of 2021 [SM] - Final Order No.20049/2023 - Dated:- 15-2-2023 - MR. P.A. AUGUSTIAN, JUDICIAL MEMBER Ms. Neethu James and Ms Shradha Pandey, Advocates for the Appellant Mr. P. Saravana Perumal , Authorised Representative for the Respondent ORDER The appellant is an oil refinery and subsidiary of Oil and Natural Gas Corporation (ONGC), the Public Sector ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he extended period of limitation is not applicable when there is no allegation of fraud or suppression of fact etc. 2. After considering the submissions made by the appellant, Adjudicating Authority vide Order-in-Original dated 31.03.2017 has held as under: 1. I hold that the CENVAT credit amounting to Rs.21,14,385/- availed and utilized during the period from September 2014 to January 2015 should be disallowed and recovered from the assessee under Rule 14 of CENVAT Credit Rules, 2004 read with Section 11A(4) of the Central Excise Act, 1944. 2. I hold that the interest as applicable on the total ineligible credit availed of Rs.21,14,385/- and Rs.9,73,928/- for the respective applicable periods should be recovered from them under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith Section 11A(4) of Central Excise Act, 1944. ii. I drop the proceedings with reference to demand of interest under Rule 14 of CENVAT Credit Rules, 2004 read with Section 11AA of Central Excise Act, 1944. iv. I drop the proceedings of penalty under Rule 15(1) 15 (2) of CENVAT Credit Rules, 2004 read with Section 11AC (1) of Central Excise Act, 1944. 4. From the above, it is evident that the Adjudicating Authority itself upheld the objection made by the appellant regarding invoking the extended period of limitation and considering the same, dropped the proposal for penalty. Aggrieved by the said Order-in-Original, the appellant submitted an appeal by raising the various contentions including the objection regarding invoking ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... keeping all options open. Thus, the Adjudicating Authority ought to have considered the issue in detail including preliminary objections raised by the assessee/appellant regarding invoking the extended period of limitation. Moreover, by dropping the penalty by Original Authority in de novo proceedings shows that there is no suppression of fact or fraud to invoke the extended period of limitation. The learned Counsel appearing for the appellant has relied upon the following decisions: Commissioner of ST, Mumbai IV Vs Rochem Separation Systems (I) Pvt. Ltd., 2019 (23) GSTL 446 (Bom.) [Para No. 3 (iii)]. Noharlal Verma Vs Distt. Coop. Central Bank Ltd., (2008) 14 SCC 445, [Para No. 32 and 33]. 7. As per the law laid down by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tation. While considering the issue in similar case i.e 2013 (298) ELT 225 (Tri-Delhi) in the case of CCE Indore Vs NEPA Limited, Tribunal held that the assessee being a Public Sector Undertaking, there can be no mala fide intention to avail irregular and non-available CENVAT credit and non-payment of duty with intent to evade payment of duty and held that lower period of limitation and imposition of penalty are not imposable. Once there is no averment either in the SCN or impugned orders regarding the availment of benefits by suppression of fact or fraud, invoking extended period of limitation is not proper and considering the law laid down by the Hon ble Apex Court, I am allowing the appeal on the ground of limitation without going into t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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