TaxTMI 
TaxTMI 
TaxTMI 
2025 (7) TMI 697
X X X X Extracts X X X X
X X X X Extracts X X X X
.... of Rs. 83,615/- paid by the appellant towards the duty and interest demanded. 2. Brief facts are that the appellant is engaged in the manufacture of "Air or Vacuum pumps, Air / other Gas compressor" and Wind Driven Ventilators" (WDV) since 01.04.2008. They took Central Excise Registration on 05.05.2010. The appellant vide their letter dated 11.07.2010 addressed to the Divisional Assistant Commissioner intimated that they were under the Bonafide belief that the Wind Operated Ventilators manufactured by them were exempted from excise duty and had thus not discharged their duty liabilities in time, that they had on verification of their books realised that they had crossed the SSI exemption threshold of 1.5 crores on 29.01.2009 for the period 2008-09 and on 23.09.2009 for the period 2009-10. They have determined the duty payable and have, after claiming cenvat credit of Rs.2,66,417/-,and remitted the duty of Rs.9,02,771/- along with interest of Rs.83,615/- thereon. The challan evidencing the payment and workings of duty liability were also enclosed. They had stated that the relevant copies of the input invoices showing appropriate duty were available with them. It was also requ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... on the decision of the Bombay High Court in Tharwani Infrastructures, 2024 (4) TMI-790-Bombay High Court, wherein it was held that such scenarios does not warrant issuance of show cause notice invoking extended period of limitation. 5. Shri. M. Selvakumar, Ld. Authorised representative reiterates the findings of the Ld. Appellate Authority in the impugned Order in Appeal. 6. Heard both sides, carefully perused the appeal records as well as the citation submitted as relied upon. 7. The only issues to be decided are whether in the facts and circumstances of the appellant's case as stated above, whether a notice could have been issued to the appellant and whether the denial of benefit of cenvat credit claimed and imposition of penalty equivalent to duty is tenable. 8. We find that the appellant's defence centers around their belief in the exemption of Wind Driven Ventilators from excise duty, their voluntary payment of duty and interest upon realizing the error, and the argument that no malafide intent or suppression of facts with intent to evade payment of duty had occurred. It was also contended that the Cenvat credit should not be denied based on procedural lapses on non-r....
X X X X Extracts X X X X
X X X X Extracts X X X X
....The person who has paid the duty under clause (b) of sub-section (1), shall inform the Central Excise Officer of such payment in writing, who, on receipt of such information, shall not serve any notice under clause (a) of that sub-section in respect of the duty so paid or any penalty leviable under the provisions of this Act or the rules made thereunder. (3) Where the Central Excise Officer is of the opinion that the amount paid under clause (b) of sub-section (1) falls short of the amount actually payable, then, he shall proceed to issue the notice as provided for in clause (a) of that sub-section in respect of such amount which falls short of the amount actually payable in the manner specified under that sub-section and the period of one year shall be computed from the date of receipt of information under sub-section (2). (4) Where any duty of excise has not been levied or paid or has been short-levied or short-paid or erroneously refunded, but the reason of- (a) fraud; or (b) collusion; or (c) any wilful mis-statement; or (d) suppression of facts; or (e) contravention of any of the provisions of this Act or the rules made thereunder with intent to evade payment of ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....d the same vide it's letter dated 11.07.2010, all that the Department had to do was to verify the correctness of the same and in case of any short payment, to have proceeded under Section 11A(3) and issued a notice within the time frame specified; and on the other hand, if the payments had been found to be correct, to have given a quietus to the issue in terms of Section 11A(2) of the Act. Having not done so, the issuance of the SCN dated 03.04.2014, after three and a half years from the date of the appellant's intimation was decidedly unjustified. In this regard, we find that the reliance placed by the appellant on the decision in Tharwani Infrastructures, 2024 (4) TMI-790-Bombay High Court apposite. In the said decision, in somewhat similar circumstances, albeit under the provisions of Finance Act, 1994, the Honourable High Court has held as under: "18. Thus, applying such provisions to the facts of the present case, it is clear that there was no intention on the part of the Respondent to evade payment of service tax. By evasion, it would be meant that the assessee was eluding and avoiding to pay tax by trickery. The intention of the Respondent in the present case was not ....