2018 (11) TMI 9

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....en though the appellant was clearing the final product without payment of duty in terms of said exemption Notification, they availed the cenvat credit to the extent of Rs. 13,23,451/- during the period March 2008 and February 2009. Such availment of credit by them was being reflected in their returns filed with their Jurisdictional Central Excise authorities. Inasmuch as the appellant's final product was exempted, the credit, though availed, was not being utilised by them and remained only as a paper entry. Subsequently, on being objected to by the revenue, they reversed the said credit entry in their records. 3. Further, though the appellant's final product was exempt from payment of duty of excise, but the same attracted paper ....

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....ess and education cess he held that the demands are required to be confirmed against the appellant along with imposition of penalty under Section 11AC of the Act. 7. This said order of the Commissioner (Appeals) is impugned before us. 8. Ld. Advocate for the appellant is not contesting the confirmation of demand in respect of paper cess and education cess. However, he submits as regards penalty under Section 11AC of the Central Excise Act, there is no provision in terms of the said Act to impose penalty in case of short levy or non-levy of paper cess or education cess. Our attention stands drawn to the Hon'ble Jharkhand High Court in CCE Jamshedpur vs. Tata Motors Ltd. 2016 (336) ELT 208 (Jhar.) laying down to the same effect. 9. A....

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.... adjudicating authority has vacated the show-cause notice on the ground of limitation by observing the entire facts were placed before the Jurisdictional authority in ER 1 returns. Commissioner (Appeals) did not extend the benefit of the limitation on the ground that Notification no. was not mentioned in the returns. We find no merits in the above reasoning of the Commissioner (Appeals). Admittedly, the appellant was enjoying the exemption for the first clearance upto 3500 MT and this fact was in the knowledge of the revenue as also being reflected in the returns. Mere non mention of the Notification number would not make the assessee guilty of any suppression or misstatement with the malafide intention to evade taxes. Further, we note that....