TMI Blog2024 (1) TMI 146X X X X Extracts X X X X X X X X Extracts X X X X ..... of duty. The appellant has not acted with dishonest or fraudulent intent and suppression of facts is not involved. This being so, question of invoking the extended time limit or imposing penalty does not arise. The merits of the issue not gone into, due to a lack of challenge on the said grounds, further the appeal on time bar is answered in favour of the appellant. Since the Show Cause Notice has been issued beyond the normal time-limit, the impugned order is set aside - appeal allowed. - SHRI P. DINESHA, MEMBER (JUDICIAL) AND SHRI M. AJIT KUMAR, MEMBER (TECHNICAL) Shri S. Durairaj, Advocate for the Appellant Shri N. Satyanarayanan, AC (AR) for the Respondent ORDER This appeal is filed by the appellant agai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e appellant has stated that they had cleared the capital goods on payment of duty of Rs.6,31,584/- through CENVAT credit as per Rule 17(1) of Central Excise Rules, 2002 and also by availing the benefit of Notification 23/2003-CE dated 31.3.2003. He stated that this procedure for payment of duty using CENVAT credit had found acceptance as per the decision of CESTAT [Single Member] in the case of CCE Vs Matrix Laboratories Ltd 2012 (281) ELT 569 (Trib. Bang). However, he fairly admitted that subsequently the matter was decided against the appellants in the case of Continental Engines Ltd Vs CCE 2018 (363) ELT 187 (Trib. De) and also in the case of Divis Laboratories Ltd Vs CCE 2019 (370) ELT 457 (Tri. Hyd). However, they have a strong c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... details in the ER-2 returns. The learned Advocate stated that the extended period cannot be invoked for the following reasons. They obtained permission from the Assistant Commissioner vide letters dated 8.5.2008 8.9.2010 for the removal of capital goods in domestic area as per 6.15(b) of FTP and followed the procedure prescribed in Rule 17 of Central Excise Rules, 2002, which is a special rule to be followed by 100EOU for removal of goods in domestic tariff area. There is no allegation in the notice for contravention of Rule 17. Appellants removed the goods under Rule 11 invoices as per Rue 17(1). As per the SCN duty was paid through CENVAT credit on the same day of removal. Appellants have paid the duty through CENVAT credit on the bona ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Item 37]. But, in the SCN, tariff rate of 14% and 10% was adopted. Therefore, while considering the effective rates, the demand would be only Rs.6,12,597/-. Amount paid through CENVAT credit is Rs.6,31,584/-. In the case of Divis Laboratories Ltd Vs CCE 2019 (370) ELT 457 (Tri. Hyd), the Tribunal has allowed the re-credit once the demand is paid in cash. In the instant case, re-credit is not possible but refund by cash is allowed in terms of Section 142 of CGST Act, 2017. Therefore, the issue is revenue neutral. Reliance is placed on the decision of CESTAT, Chennai in the case of Hyundai Motor India (P) Ltd Vs CCE 2019 (29) GSTL 452, which was also affirmed by the Hon ble Apex Court 2020 (32) GSTL J154(SC). He hence prayed that the i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4. We have carefully gone through the appeal records and heard the rival parties. We find that the only point for discussion is whether the matter is hit by time-bar. We find that the appellant had sought permission from the department before clearing the goods. He had reported the matter in their ER-II returns. The issue also involves the interpretation of law with even a difference of opinion among the Tribunal Single Member Bench and its Division Bench on certain aspects of payment of duty. We hence find that the appellant has not acted with dishonest or fraudulent intent and suppression of facts is not involved. This being so, question of invoking the extended time limit or imposing penalty does not arise. We do not go into the merits o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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