ORDER
S.L. Peeran, Member (J)
1. This appeal arises from OIA No. RK/310/NGP II/2004, dated 26-10-04 passed by the Commissioner of Central Excise (Appeals) Nagpur. Appellants have already taken permission to file an appeal in this bench. The Commissioner (Appeals) has confirmed OIO No. 312/04, dated 31-5-04 passed by the Assistant Commissioner Nagpur II division. The issue lies on a short compass. The appellants were working under fortnightly payment scheme. They had utilized the credit available to them with regard to the goods manufactured and cleared for the 1st fortnight and up to 31st of later half of the month. Credit which was available to them from 15th and it was utilized for payment of duty with regard to the goods cleared by them for first half of the month. However, they realized the mistake and reversed the credit and paid the balance amount by PLA along with interest. The Revenue has proceeded to deny the credit available to them on the ground that they had partly utilized the excess credit. They have also been imposed penalty in the matter. The contention of the appellant is that whatever credit was eligible to them it cannot be denied merely because a portion of it by inadvertence which was not available to them was utilized while paying duty. This is a well taken contention. There is no provision to deny the credit eligible to them. The appellants have reversed the ineligible portion of the credit availed by them along with interest amount and paid balance duty through PLA. In these circumstances, there is no logic in the impugned order in confirming demand for the entire fortnightly period merely because a portion of excess credit has been utilized. Even otherwise, the appellants contend that the show cause notice was issued on 9-1-04 alleging excess utilization of credit relating to clearance in the first fortnight of August, 2000 and subsequently treated the goods so cleared as being not suffered with duty. It is pointed out that subsequent corrigendum was issued on 11-3-04 and the period of excess utilization has been changed to January, 2001 and February, 2001. It is submitted that the character of the show cause notice’ is changed and therefore, the demands are barred by time. The subsequent show cause notice has changed the period, hence the demands also get time barred and for the fact that the Revenue had not alleged willful suppression and invoking larger period in the matter. The appellants succeed on both the counts. The appeal is allowed.
(Pronounced and dictated in open Court)