A. Selvam, J. - (1.) THIS Civil Miscellaneous Appeal has been directed against the Final Order No. 84/2009, dated 16 -1 -2009 in Appeal No. E/753/2006 by the Southern Zonal Bench of CESTAT, Chennai [ : 2009 (237) E.L.T. 507 (Tribunal)]. The respondent herein has been doing production oil cotton yarn under the name and style of M/s. Loyal Textile Mills Ltd. During the course of business, the Assistant Commissioner of Central Excise, Kovilpatti has issued a show cause notice dated 6 -10 -2005 to the respondent, wherein it has been specifically directed as to why the amount of Rs. 3,35,144/ - which has been wrongly utilised and should not be recovered under Rule 12 of Cenvat Credit Rules, 2002 r/w Section 11A(1) of Central Excise Act, 1944. The said notice has been challenged before the Assistant Commissioner of Central Excise, Kovilpatti Division, wherein the demand made in the show cause notice has been confirmed. Against the order passed by the Assistant Commissioner of Central Excise, Kovilpatti Division, an Appeal has been preferred before the Commissioner of Central Excise (Appeals) in 54 of 2006, wherein earlier order passed in original has been confirmed. Against which, an Appeal has been preferred before the Appellate Tribunal in Appeal No. E/753/2006.
(2.) THE Appellate Tribunal after hearing both sides has allowed the Appeal on the ground that the claim made in the show cause notice dated 6 -10 -2005 is barred by limitation as per provision of Section 11A of the Central Excise Act and against the order passed by the Appellate Tribunal, the present Civil Miscellaneous Appeal has been filed. The learned counsel appearing for the appellant has contended With great vehemence that since the respondent has indulged in committing malpractice under the guise of selling machineries to its sister concern simply by way of paying duty and thereby transferred the accumulated Cenvat credit to its sister concern, the actual period mentioned in Section 11A of the said Act is not applicable and only extended of five years is applicable. But the Appellate Tribunal has not at all considered the same and therefore, the order passed by the Appellate Tribunal is liable to be set aside.
(3.) THE learned counsel appearing for the respondent has contended that since the Department has had knowledge about the transaction of the resident and since the respondent has filed monthly returns, extended period of limitation is not applicable and only the actual period mentioned under Section 11A of said Act is applicable. Under the said circumstances, the entire claim made in the show cause notice dated 6 -10 -2005 is barred by limitation and, therefore, the view taken by the Appellate Tribunal is perfectly correct and the same does not require any interference.;