TaxTMI 
TaxTMI 
2011 (6) TMI 271
X X X X Extracts X X X X
X X X X Extracts X X X X
....der dated 27-09-2005, by which the Customs, Excise and Service Tax Appellate Tribunal (CESTAT), has upheld the order of the Commissioner that the claim of the Revenue is time barred. 4. A Show cause notice dated 10-02-1999 was issued by the Deputy Commissioner of Central Excise, Customs House, Panaji, Goa to the respondent-Company alleging as follows:- (a) That the assessee availed of modvat credit amounting to Rs. 1,25,917/- in contravention to Rule 57 Q(2) of Central Excise Rules, 1944, which provided no credit of the specified duty paid on capital goods could be allowed if such duty has been paid on capital goods before 1st March, 1994; (b) That the assessee availed modvat credit amounting to Rs. 57,775/-, d....
X X X X Extracts X X X X
X X X X Extracts X X X X
....at wrongful claims were made by the assessee for which notice was issued after a period of four years on 10-02-1999. The show cause notice itself cannot be held to be barred by limitation in view of the provision of Section 11A of the Central Excise Act, 1944 which reads thus: "Section 11A.- Recovery of duties not levied or not paid or short-levied or short-paid or erroneously refunded.- (1) When any duty of excise has not been levied or paid or has been shortlevied or short-paid or erroneously refunded, whether or not such nonlevy or non-payment, short-levy or short-payment or erroneous refund, as the case may be, was on the basis of any approval, acceptance or assessment relating to the rate of duty on or valuation of ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....m a notice is served under the proviso to sub-section (1) by the Central Excise Officer, may pay duty in full or in part as may be accepted by him, and the interest payable thereon under section 11AB and penalty equal to twenty-five per cent of the duty specified in the notice or the duty so accepted by such person within thirty days of the receipt of the notice." 10. Mr. Ferreira, learned Assistant Solicitor General for the appellant, relied on the proviso to the aforesaid Section wherein limitation can be extended where duty has not been levied or paid or has been short-levied or short-paid or erroneously refunded, by reason of fraud, collusion or any wilful mis-statement or suppression of facts, or contravention of any of the p....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ly. The initial burden is on the department to prove that the situation visualized by the proviso existed. But the burden shifts on the assessee once the department is able to produce material to show that the appellant is guilty of any of those situations visualized in the Section." 11. Having regard to the ratio of the decision supra, we find that the CESTAT was not entitled to hold that the show cause notice was time barred with regard to the demand at (c) above, namely that the respondent availed credit twice of duty amounting to Rs. 17,618/- on invoice no. 47 dated 05-04-1994 vide entry no. 21 dated 06-06-1995 and once again vide entry no. 60 dated 06-06-1995 in RG-23C (Part-II) account. 12. Prima facie, the claim o....