2015 (10) TMI 2073

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....During the period from 5.4.2002 to 14.6.2002, they had removed various Inputs as such under Rule 3(4) of the Central Excise Rules 2002 by reversing the amount equivalent to Cenvat Credit taken on such Inputs.Show cause Notice was issued proposing demand of duty on the transaction value of the said inputs under Rule 3(4) of the Central Excise Act 2002 as it stood during the relevant time. The Adjudicating authority confirmed the demand of Central Excise duty of Rs. 2,17,157/- alongwith interest and imposed penalty of equal amount of duty.The Commissioner (appeals) upheld the Adjudication order. 2. The Learned Advocate on behalf of the appellant contested demand of duty on merits as well as on limitation. Both the sides cited case laws on ....

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....tended period is invocable for recovery of wrongly availed Cenvat credit only when wrong Cenvat credit availment has happened due to fraud, collusion, wilful misstatement, suppression of fact or contravention of provision of Central Excise Act, 1944 or of the rules framed thereunder with intent to evade the payment of duty. Interpreting the provisions of Section 11A (1), the Apex Court in the case of Tamil Nadu Housing Board v. CCE, Madras (supra) has held that when the law requires an intention to evade the payment of duty, then this not mere failure to pay the duty but is something more that the assessee was aware that the duty was payable and he deliberately avoided paying it. On going through the order of the original Adjudicating Autho....

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....verall facts and circumstances of the case, I do not find anything from which it can be concluded that the short payment of the amount payable under Rule 3(4) of the Cenvat Credit Rules was a deliberate act on the part of the assessee. Therefore, I hold that the longer limitation period in this case is not invokable. More so, when during visit of the audit team all the information had been made available by the assessee on the basis of which only the Department had detected this short payment and subsequently all the information for quantification of the duty has been furnished by the appellant under their letter dated 17-6-2003. Therefore, I hold that the extended period is not invokable, and as such, the impugned order is not sustainable ....