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TMI Blog2023 (7) TMI 584X X X X Extracts X X X X X X X X Extracts X X X X ..... e Department in the premises of one M/s Ashoke Electrical & Stampings Pvt. Ltd. on 2nd March, 2006 and it was found that they have no sufficient manufacturing infrastructure available in the factory to manufacture Electric Motors, Control Pannels, Transformers etc. reflected in their statutory records and returns. There was no stock of inputs or finished goods in the factory cum office premises. 2.2 On the basis of the investigation conducted against M/s Ashoke Electrical & Stampings Pvt. Ltd., it was alleged that the capital goods cleared by the said M/s Ashoke Electrical & Stampings Pvt. Ltd. to the appellant, are not their manufactured goods. Therefore, the appellant has taken cenvat credit on the invoices issued by M/s Ashoke Electrica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lant as they have paid duty on capital goods installed in their factory. Therefore, the impugned order is to be set aside and also the demand is barred by limitation. To support, he relied on the decisions of this Tribunal in the case of Sunvik Steels Limited : 2012 (276) ELT 518 (Tri.-Bang.) and Dhakad Metal Corporation : 2015 (330) ELT 561 (Tri.- Ahmd). 4. On the other hand, the ld.A.R. for the Revenue drew our attention to the fact that the supplier/manufacturer of the capital goods, on which the appellant has taken cenvat credit, was not having manufacturing facility in their premises. Therefore, the said capital goods have not been received by the appellant. In that circumstances, the cenvat credit has rightly denied. 5. Heard the pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case of the department that whole operation has been undertaken to pass on ineligible Cenvat credit. Further, the order also reveals that during the investigation the suppliers of raw materials had admitted that they had supplied raw materials to M/s. Ashok Electrical Stampings Pvt. Ltd. Further, the Chartered Engineer's certificate produced also shows that the supplier was operational for 15 years. It is also not the case of the Department that the supplier did not have a factory at all. Admittedly 40 machines/machineries had been installed during 1992-2004 by the supplier. The supplier had also produced a Chartered Engineer's certificate to the effect that the machines were in working condition. In any case the facts that emerge from the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y demand invoking extended period also cannot be sustained if challenged. Thus on merit as well as on limitation, the appellants succeed. Accordingly, appeal filed is allowed with consequential relief to the appellant." 8. Further, in the case of Dhakad Metal Corporation (supra), again this Tribunal, has observed as under : "6. Heard both sides and perused the case records. The issue involved in the present appeals is whether appellant M/s. Dhakad Metal Corporation is eligible to credit on the basis of documents which are claimed to have been received along with inputs issued by the registered dealer when original manufacturer M/s. Prasun Ferro Alloys & Metal Casting Pvt. Limited had no facility for manufacturing the goods on which ulti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nputs received alongwith invoices, at the time of taking credit, was from M/s. Prasun Ferro Alloys & Metal Casting Pvt. Limited who had no facility for manufacturing such inputs. In the above factual matrix, appellant M/s. Dhakad Metal Corporation cannot be held to have any mala fide intention to take wrong credit and extended period of demand cannot be invoked in the present case against them. In this case, the demand is for the period 2005-06 whereas the show cause notice was issued on 20-2-2009. As the extended period is not invokable, therefore, the demand is also time barred in addition to credit being admissible on merits. Accordingly appeal filed by M/s. Dhakad Metal Corporation is required to be allowed." 9. Further, in the case o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ive of the fact that fraud has not been committed by the appellants. It is evident from the impugned Order that the appellants have not committed any fraud, suppression, or wilful misstatement as the Commissioner has given specific finding that no evidence has been brought on record to suggest active involvement of the appellants. Rule 57-I(1)(ii) clearly provides that where a manufacturer has taken a credit by reason of fraud, wilful mis-statement, collusion or suppression of fact or contravention of any of the provisions of the Act or the Rules with intent to evade payment of duty extended period of 5 years will be available for issuing show cause notice. It is apparent from the wordings of clause (ii) that fraud etc. has to be committed ..... X X X X Extracts X X X X X X X X Extracts X X X X
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