2010 (8) TMI 271

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....er, 2009passed by the Commissioner (Appeals),Delhi. By the impugned order, the Commissioner while allowing the appeal filed by the appellants against the order of the adjudicating authority reduced the penalty from equal amount of duty to Rs. 5,000/-. However, refused to interfere in the rest of the part of the order except setting aside the penalty against the Managing Director. 3. The appellants are engaged in the manufacture of excisable goods, namely, power and distribution transformer and availed Cenvat Credit on the inputs and capital goods procured by them. In the course of scrutiny of ER-1 Return for the month of October, 2008 to December, 2008, it was revealed that the appellants had availed credit of Service Tax amounting ....

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....isakhapatnam-IV, reported in 2009 (239) E.L.T. 99 and Commissioner of Central Excise & Customs, Ahmedabad v. Dishman Pharma & Chem. Ltd., reported in 2007 (210) E.L.T. 124, the learned advocate submitted that, in the absence of any limitation being prescribed under the statute, it is not permissible for the authority to impose such limitation for utilization of the Cenvat Credit. He further drew our attention to the observations made by the Commissioner (Appeals) to the effect that the judgment in Coromandel Fertilizers Ltd.'s case (supra) was per incuriam and submitted that without arriving at the exact mistake committed by the Tribunal while delivering the said order, the lower authority could not have declared the said order to be per in....

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....s in the show cause notice and had stated that they could produce necessary documentary evidence in support of their contention. The learned advocate, in the course of the arguments, submitted that, neither the adjudicating authority nor the lower appellate authority called for such documentary evidence. It is settled law that it is not for the authorities to call for the evidence, but once the show cause notice is issued, it is for the assessee to produce such documents if he or she desires to contest the allegations in the show cause notice. At the same time, in the case in hand, it is not in dispute that the appellants did maintain certain accounts in relation to the availament and utilization of the credit, besides it related to the per....