Home Case Index All Cases Service Tax Service Tax + AT Service Tax - 2015 (1) TMI AT This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2015 (1) TMI 89 - CESTAT NEW DELHIWaiver of pre deposit - Admissibility of Cenvat credit - inputs and capital goods and input services used in the erection of transmission towers and shelters spread all over the country - wilful mis-statement/suppression of facts - Held that:- period involved in this case is 2004 to 2008 which is prior to 2010 when the decision of Larger Bench of CESTAT in the case of Vandana Global (2009 (5) TMI 47 - CESTAT, NEW DELHI) was delivered. Thus the observation in the Show Cause Notice that the appellants ‘knew’ that taking the impugned credit of service tax was irregular hardly sustains. Indeed in a scenario where divergent decisions had been delivered by CESTAT, the extended period is held to be non-invokable by Kerala High Court in the case of Binani Zinc Vs. ACCE Cochin - [1994 (10) TMI 74 - HIGH COURT OF KERALA AT ERNAKULAM] and by CESTAT in the case of Laxmi Cement Vs. CCE, Jaipur-I - [2004 (5) TMI 362 - CESTAT, NEW DELHI] Further, in the case of Gopal Zarda Udyog Vs. CCE - 2005-TIOL-123--CEX-LB Supreme Court observed that mere failure or negligence on the part of the manufacturer does not attract the extended period. In the case of CCE Vs. Chemphar Drugs Liniments - [1989 (2) TMI 116 - SUPREME COURT OF INDIA], Supreme Court held that something positive other than mere failure on the assessee part or conscious withholding of information when assessee knew otherwise is required for invoking for extended period. As is evident from the foregoing the Show Cause Notice or the impugned order arguably scarcely brings out any negligence or failure on the part of the appellants. Appellants have been able to make out a good case in their favour on the ground that the demand is barred by limitation. Accordingly, we waive the pre-deposit and stay recovery of the adjudicated liabilities during pendency of the appeal - Stay granted.
|