TMI Blog2024 (4) TMI 722X X X X Extracts X X X X X X X X Extracts X X X X ..... n presumed that CENVAT credit was availed by the appellant with intention to increase its CENVAT balance with the logical consequence of non-payment of duty in cash and with intent to evade payment of duty. It is a well settled legal position that all show cause notices can be issued only within the normal period of limitation. To invoke extended period one of the aggravating factors necessary must be established. In this case, the only reason for invoking extended period of limitation given in the show cause notice was that the appellant had availed CENVAT credit on the strength of ineligible documents in violation of Rule 9(1)(f) of CCR. The intention to evade payment has been presumed. The impugned orders and the OIO also do not indicate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llant availed CENVAT credit on the strength of these invoices. There is no dispute that mining services were chargeable to service tax and they qualified as input service for the coal manufactured by the appellant. 3. The department, however, noticed that the JV was constituted in the year of 2013-14 and has as its partners Shri Sanjay Agarwal and Smt. Priya Agrawal, each with their own bank accounts. The JV sub-contracted the work to M/s S. Kumar s Associates (proprietor Priya Agrawal) who issued invoices to JV. On the basis of the invoices issued by the sub-contractor, the JV issued invoices to the appellant but mentioned service tax registration of its sub-contractor. It was found that the sub-contractor had also not paid the service tax ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se notice dated 20.12.2018 was issued to the appellant which culminated in the issue of OIO dated 28.02.2019. 6. Against this order both the assessee and the Revenue had filed appeals before the Commissioner (Appeals). The case of the appellant was that it was entitled to CENVAT credit and it was wrongly denied and ordered to be recovered along with interest. This appeal of the appellant was rejected by the Commissioner (Appeals) by order in appeal dated 10.10.2019. 7. The department s case was that penalty should have been imposed under rule 15(3) of CCR upon the appellant and the Commissioner allowed the department s appeal by order dated 20.08.2020. 8. Excise Appeal No. 50697 of 2020 is filed by the assessee to assailing the order in app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onafide nature of transaction is not in dispute and if the service tax has not been deposited by the service provider it should be recovered from them; (vi) Extended period of limitation was wrongly invoked in this case. The show cause notice was dated 22.02.2018 and the normal period of limitation was up to 10.10.2017. Since, the period of dispute is January, 2014 to September, 2015 the entire demand falls during the extended period of limitation; (vii) Penalties imposed under two impugned orders cannot be sustained. Submissions of the Revenue 10. Learned authorized representative for the revenue supports the impugned order. He submitted as follows: (a) Based on intelligence and information the wing of the central excise Bilaspur investiga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the improper/fake invoices issued by M/s S. kumar s Associates PE AKM (JV), Laxmanban TalabKorba (Noticee NO. 2). Thus, it appears that Noticee No. 1 have deliberately availed such inadmissible credit in contravention of the provisions of Rule 9(1)(f) of the Cenvat Credit Rules, 2004. The Cenvat Credit appears to have been availed with an intention to inflate its Cenvat balance with logical consequences of non-payment through PLA/cash and ultimately with intent to evade the payment of service tax. The availment of Cenvat credit amounting to Rs. 94,93,903/- appears to be irregular in contravention of the provisions of Rule 2,3, 9(1)(f) Rule 9(6) of the Cenvat Credit Rules, 2004 and appears recoverable along with interest from the by invokin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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