TMI Blog2023 (8) TMI 1132X X X X Extracts X X X X X X X X Extracts X X X X ..... w cause notice was issued much beyond the normal period of one year i.e. on 25.06.2010. The appellant also cited various judgments on the identical facts and the issue involved in the present case that the demand is time bar. On the issue of invocation of longer period of demand the Hon ble Supreme Court in the case of M/S CONTINENTAL FOUNDATION JOINT VENTURE SHOLDING, NATHPA HP VERSUS COMMISSIONER OF CENTRAL EXCISE, CHANDIGARH-I [ 2007 (8) TMI 11 - SUPREME COURT] has held that there cannot be suppression or mis-statement of fact, which is not wilful and yet constitute a permissible ground for the purpose of the proviso to Section 11A. Mis-statement of fact must be wilful. The demand is clearly time bar. Hence, not sustainable on limitation itself - Appeal allowed. - HON'BLE MEMBER ( JUDICIAL ) , MR. RAMESH NAIR Shri Devashish K Trivedi , Advocate for the Appellant Shri Himanshu P Shrimali , Superintendent ( AR ) for the Respondent ORDER RAMESH NAIR The issue involved in the present case is that whether the appellant is entitled for cenvat credit on the goods such as CR, SS Sheet, HR, SS Coil, old and used Aluminum structure parts, Alumin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fide belief that cenvat credit on these goods are available. He further submits that on this issue due to different interpretation there were conflicting judgments and subsequently, the larger bench gave the judgment which was reversed by the Hon ble High Court. Due to all this contrary views taken by various benches of Tribunal, Larger Bench and also by Hon ble High Court, no mala fide can be attributed to the appellant. Therefore, the demand is hit by limitation also as the same was raised beyond the normal period of one year from the date of show cause notice. He placed reliance on the following judgments:- Medicaps Limited 2011 (24) STR 572 (Tri.Delhi) Parekh Plast (I) Pvt. Ltd. 2012 (25) STR 46 (Tri.Ahd) Continental Foundation Jt. Venture 2007 (216) ELT 177 (SC). Chasma Taluka Sarvoday Majdoor Kamdar Sang Limited - 2012 (25) STR 444 (Tri.Ahd) Lanxess ABD Limited - 2011 (22) STR 587 (Tri. Ahmd) Rohit Industries Ltd 2009 (242) ELT 240 (Tri. Mum) Studioline Interior Systems Pvt Ltd 2006 (201) ELT 250 (Tri. Bang) 3. Shri Himanshu P Shrimali, Learned Superintendent (AR) appearing on behalf of the Revenue reiterates the finding of the im ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mposing any penalty on the respondents, have clearly concluded that that there was no mens rea on their part. Having said so, we really fail to understand as to how longer period of limitation can be invoked against the appellants. 6. In view of the foregoing discussion, we find no merit in the Revenue s appeal and therefore, reject the same. Parekh Plast (I) Pvt. Ltd. vs. CCE, Vapi 2012 (25) STR 46 (Tri.Ahd) 4. I find that though the said decision was placed before Commissioner (Appeals), who agreed with the appellant to the extent that the procedures are hand maid of justice and not mistress of law but the procedures and rules are made to ensure that the benefit granted by the Government is not misused. He further observed that in the present case, the appellant is having number of divisions and it does not stand proved as to whether the credit so availed was used for dutiable products or services. Accordingly, he did not find favour with the appellant on two grounds. 5. As regards the invocation of longer period, he observed that no doubt, the appellants have filed regularly the ER-1 returns. The said returns have one column i.e. credit taken on the input s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s allowed on merit as also on limitation. On the issue of invocation of longer period of demand the Hon ble Supreme Court in the case of Continental Foundation Jt. Venture Vs. Commissioner of Central Excise , Chandigarh I 2007 (216) ELT 177 (SC) held as under:- 9. We are not really concerned with the other issues as according to us on the challenge to the extended period of limitation ground alone the appellants are bound to succeed. Section 11A of the Act postulates suppression and, therefore, involves in essence mens rea. 10. The expression suppression has been used in the proviso to Section 11A of the Act accompanied by very strong words as fraud or collusion and, therefore, has to be construed strictly. Mere omission to give correct information is not suppression of facts unless it was deliberate to stop the payment of duty. Suppression means failure to disclose full information with the intent to evade payment of duty. When the facts are known to both the parties, omission by one party to do what he might have done would not render it suppression. When the Revenue invokes the extended period of limitation under Section 11A the burden is cast upon it to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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