TaxTMI 
TaxTMI 
2018 (11) TMI 826
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....under: "4......appeared to be in excess and irregular as per Rule 2,3 and 4(2)(a) of the Cenvat Credit Rules, 2004. However, since the noticee was eligible to avail the remaining 50% of the credit during the subsequent years, the above amount need not be recovered from the noticee ..." 2. The adjudicating authority has thereafter proceeded to say that the 50% excess availment of cenvat credit had come to the light only during the audit, was not disclosed voluntarily by the assessee and thus, the assessee was put on notice as to the recovery on the amount of excess availed credit, along with interest and penalty, as applicable. After considering the reply of the assessee as also discussion during personal hearing, the adjudicating authority passed Order-in-Original dated 23.12.2016 wherein he has confirmed the proposals made by him in the show-cause notice and on appeal against the same, the assessee having not been successful, is before this forum by this appeal. During the course of hearing, Shri S. Ramasubramaniam, CA appeared for the appellant and Smt. Kavita Podwal, DR appeared for the Revenue. 3. The contentions of learned consultant could be broadly summarized as below: ....
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....use notice itself points out that the impact was revenue-neutral which ipso facto proves that there is no scope for suppression and therefore, invoking larger period, when demand is revenue-neutral is bad, as held in following cases: i. Nirlon Ltd. Vs. CCEx - 2015 (320) ELT 22 (SC) ii. CCEx Vs. Kitply Industries Ltd. - 2011 (267) ELT 289 (SC) iii. CCEx Vs. Tenneco RC India Pvt. Ltd. - 2015 (323) E.L.T. 299 (Mad.) iv. CCEx Vs. Gujarat Glass Pvt. Ltd. - 2013 (290) E.L.T. 538 (Guj.); (I) On the imposition of penalty, learned consultant submits that penalty under Section 11AC could be levied only when the assessee is liable to pay duty as determined under Section 11(A) (10); which presupposes the determination of duty liability and hence, where no amount is due from an assessee or no duty is demanded, no penalty under Section 11AC (c) could be levied; (J) The adjudicating authority having stated that 50% of the cenvat credit shall be treated as excess credit availed, the show-cause notice having not demanded the alleged excess credit nor proposing to appropriate any amount, there is no scope for levying penalty under Rule 15(2) of the Cenvat Credit Rules read with Section 11A....
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....ed by the Revenue and therefore, the burden of proving malafide/suppression is on the Revenue, since, it is the cardinal principle of law that the burden of proof lies on the shoulder of the person alleging it. Moreover, a mechanical reproduction of the language used in the statute would not per se justify the malafide intentions nor the invocation of extended period of limitation. From the perusal both Order-in-Original as well as the impugned Order-in-Appeal, I do not find any discussion by the authorities as to how the action of the appellant in availing cenvat credit tantamounts tomalafide intention and suppression of facts or mis-declaration or mis-statement, except pointing out that but for audit, the same would not have come to the notice of the Department. Further, the show-cause notice points out that the internal audit was conducted during August 2014 and September 2014 whereas the show-cause notice was issued on 01.06.2016, after a wide gap. In this context, the findings of the Hon'ble Supreme Court in the case of Uniworth Textiles Ltd. (supra) assumes relevancy, the relevant portion of which is extracted below: "23. In the present case, from the evidence adduced by th....
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.... it must be shown that the excise duty escaped by reason of fraud, collusion or willful misstatement of suppression of fact with intent to evade the payment of duty. It has been observed : '...Therefore, in order to attract the proviso to Section 11-A(1) it must be alleged in the show-cause notice that the duty of excise had not been levied or paid by reason of fraud, collusion or willful misstatement or suppression of fact on the part of the assessee or by reason of contravention of any of the provisions of the Act or of the Rules made thereunder with intent to evade payment of duties by such person or his agent. There is no such averment to be found in the show cause notice. There is no averment that the duty of excise had been intentionally evaded or that fraud or collusion had been practiced or that the assessee was guilty of wilful misstatement or suppression of fact. In the absence of any such averments in the show-cause notice it is difficult to understand how the Revenue could sustain the notice under the proviso to Section 11-A(1) of the Act.' It was held that the show cause notice must put the assessee to notice which of the various omissions or commissions stated in ....