AI OCR 
TaxTMI 
TaxTMI 
TaxTMI 
2022 (6) TMI 556
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....lant is justified in availing suo moto credit of excess duty paid in previous month on account of clearance of input effected under Rule 3(5) of Cenvat Credit Rules, 2004? 3. The appellant herein are engaged in manufacture of Colour T.V., LCD, LED, Washing Machines, Split Air Conditioners and its spare parts and are availing Cenvat Credit as per Rule 3 of Cenvat Credit Rules, 2004. They are providing after sale service to their customers and clearing spares and components for the said service. Free services were provided for in-warranty period, whereas for out-warranty period the services were provided on chargeable basis. For both the services they had outsourced the same to M/s. Adon....
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....ing said months. The Adjudicating Authority vide Order-in-Original dated 19.12.2017 confirmed the demand of Central Excise duty alongwith interest and equal penalty and a fine of Rs. 5 Lakhs was also imposed in lieu of confiscation. The appeal filed by the appellant before the Commissioner (Appeals) was rejected. 4. The Learned Chartered Accountant explained the procedure adopted by the appellant which is in issue. According to him while supplying the raw material as required by their service agent M/s. Adonis Electronics Pvt. Ltd. for giving after sales service to appellant's customers, 'nil rate of duty' is shown in invoice of stock transfer as no duty is payable on clearance of&nbs....
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....ontinued the said practice with effect from May, 2016. Learned Chartered Accountant further submits that it is settled principle that excess payment made upon one clearance can be subsequently adjusted against another clearance and in support of the said submission learned Chartered Accountant relied upon the decision of the Tribunal in the matters of (i) Vinir Engineering Pvt. Ltd. v/s CCE, Banglore; 2004 (168) ELT 34 (Tri- Bang) ; (ii) South Asian Petrochem Ltd. v/s CC, Kolkata; 2007 (219) ELT 991 (Tri-Kolkata) and (iii) Gujarat NRE Coke Ltd v/s CCE, Rajkot; 2012 (27) STR 372 (Tri-Ahmd). He further submits that if suo moto availment of credit is allowed, suo moto adjustment of c....
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....so submits that the appellant has not disclosed the details of such adjustments of central excise duty in their statutory records viz. ER-1 Return, Cenvat register and the said short payment of Central Excise duty would have remained undetected, if efforts were not taken by the department and they have thus suppressed the facts from the department and therefore the extended period of limitation has rightly been invoked in the matter. Learned Authorised Representative, therefore prayed for dismissal of the appeal filed by the appellant. 5. I have heard learned Chartered Accountant appearing for the appellant and learned Authorised Representative for the Revenue and perused the case records includ....
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....ted by the appellant was within the knowledge of the Revenue. Therefore, no suppression can be attributed to the appellant. A Co-ordinate Bench of the Tribunal in the matter of Sourav Ganguly v/s Union of India, 2016 (43) STR 482 (Cal.) has held that there has to be positive, conscious and deliberated action on the part of the assessee intended to evade tax and a clear fraudulent motive or an element of mens rea on part of the assessee has to be established before the department can take recourse to the extended period of limitation. The facts of the case clearly establish that there was no suppression on the part of the appellant and they have submitted all the documents/information as and when the same was asked by the department, startin....