COMMISSIONER OF CENTRAL EXCISE BANGALORE I COMMISSIONERATE, C.R. BUILDING, QUEENS ROAD, BANGALORE - 560 001 Vs. M/S. MTR FOODS LIMITED., NO. 80, BOMMASANDRA INDUSTRIAL AREA, HEBBAGODI, ANEKAL TALUK, BANGALORE - 562 158

JUDGEMENT

(1.) This appeal is by the Revenue challenging the order passed by the Tribunal allowing the appeal filed by the Assessee solely on the ground that the very initiation of proceedings was barred by law of limitation.

(2.) The Assessee is a manufacturer of Ice-Cream and were availing the benefit of CENVAT credit of duty paid on 'inputs service' of the capital goods. They availed CENVAT credit of duty paid on prefabricated (construction) building (cold room) consisting of wall, roof, door, flashing window, on an assumption that they are required to manufacture final products, The cold room is used for freezing the Ice-Cream under below -20 to -40 Degree Celsius in order to make the Ice-Cream marketable. It is not in dispute that the Assessee has fifed the return as required under Rule 7 of the CENVAT Credit Rules, 2002 as per Annexure-10 giving the details such as name of the supplier/place, type of supplier, duty paying documents, ECC number of the supplier, date on which inputs received value thereof, CENVAT credit availed thereon and also the item in description. The Revenue authorities after receipt of the returns did not raise any queries and audit was undertaken during the period between May 2003 to August, 2004. The said audit was supervised by the Deputy Commissioner of Central Excise and the audit note also has been signed by him. They did not find anything wrong in the availment of the CENVAT credit. It is only, when the audit took place during September and October, 2004, they noticed this wrong availment of credit and issued a show cause notice on 25-9-2007. Thereafter duty, interest and penalty was levied. Aggrieved by the same, the Assessee preferred an appeal to the Tribunal. The Tribunal without going into the merits of the matter, set aside the order impugned in the appeal solely on the ground that the initiation of proceedings is barred by time. Aggrieved by the said order, the present appeal is filed.

(3.) The Learned Counsel appearing for the Revenue submits that the defect was noticed in September, 2004, and the proceedings initiated on 25-9-2007 was well within the period of 5 years and therefore the Tribunal was not justified in setting aside the order on the ground of limitation. Section 11A on which reliance is placed reads as under: