COMMISSIONER OF C. EX. Vs. PUSHP ENTERPRISES

JUDGEMENT

(1.) THE facts leading to filing of this appeal by the Department are, in brief, as under:

(2.) SHRI Sourabh Yadav, Advocate, the learned Counsel for the Respondent defended the impugned order reiterating the Commissioner (Appeals), findings and pleaded that in the impugned order, the Appellants were required to disclose the quantum of CENVAT Credit taken in respect of the inputs and input services and they were not required to enclose the invoices or disclose the details regarding the invoices for input goods and input services and that the Respondent availed CENVAT credit in respect of the input services, in question, under bona fide belief that they are entitled for the same and there is no evidence that the Respondent had deliberately misled the Department or suppressed some relevant information from the Department with intent to evade payment of duty by taking more CENVAT credit than the credit for which they were entitled, and that he relies upon the judgments of the Hon'ble Supreme Court in the cases of Padmini Products v. CCE reported in : 1989 (43) E.L.T. 195 Collector of Central Excise v. HMM Limited reported in : 1995 (76) E.L.T. 497 and Collector of Central Excise, Bangalore v. Karnataka Agro Chemicals reported in : 2008 (227) E.L.T. 12 wherein it has been held that for invoking the extended period under proviso to Section 11A(1) of the Central Excise Act, some positive evidence showing deliberate suppression of relevant facts, willful misstatement or contravention of the provisions of the Central Excise Act, 1944 or of the Rules made there under with intention to evade payment of duty is required and mere failure or negligence of the manufacturer to take out license or pay duty where there was scope for doubt that goods were not dutiable is not sufficient for invoking longer limitation period. He pleaded that the Commissioner (Appeals) has given a clear finding that there is no evidence produced by the Department to show that the Respondent had deliberately suppressed any relevant information with intent to avail wrong CENVAT credit, while knowing that they were not entitled for the same and in view of this, the Commissioner (Appeals) has rightly held the demand to be time barred.

(3.) I have carefully considered the submissions from both the sides and perused the records.