2018 (1) TMI 199

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....ng fly ash percentage not less than 25% by weight was exempted vide notification No.3/2001 dated 1-3-2001. The said product become dutiable w.e.f 1-3-2006 vide Notification No.5/2006-CE. From the scrutiny of the monthly return for the month of 2006 it was noticed that appellant have availed cenvat credit of Rs. 16,18,426/- on input service namely manpower recruitment agency, business auxiliary service and GTA inward which was received during the period Jun 2005 to Feb, 2006 (period when product of appellant was exempted). The said credit was utilized for subsequent payment of excise duty during the period May, 2006 to December, 2006. The show cause notice was issued alleging that since the final product of the appellant was exempted they we....

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....crutiny of the records for the period January, 2005 to March, 2007 the show cause notice was issued on 12-6-2009 disallowing the Cenvat credit on GTA therefore the fact of the present case is very much available in the records scrutinized by the department for issuing show cause notice on 12-6-2009. The show cause notice related to the present case was issued on 6-1-2011 which includes period of show cause notice dated 12-6-2009 therefore all the facts were very much before department. He further submits that appellant was already registered with the department therefore it cannot be said that there is suppression of fact on the part of the appellant. He further submits that department has made an inquiry in 2008 regarding irregular availme....

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....ssion of facts on their part. In this regard, I observed that though the services on which credit availed were received by the appellant before 1-3-2006 however credit was taken in the month of March, 2006 when the final product become dutiable. In this regard when the credit was shown availed in the month of March when the product is dutiable no one can assume that credit was taken wrongly. The fact that the credit was pertaining to the period prior to 1-3-2006 was not declared in ER-1 return and was not known to the department therefore even though the availment of Cenvat credit was shown in the ER-1 return for the month of March but in absence of information regarding the receipt of input service prior to 1-3-2006 when product was exempt....