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2019 (7) TMI 488 - AT - Central ExciseCENVAT Credit - input service - compensation granted for providing services for building and bringing into commercial operations services as that of fabrication, installation errection and commissioning services for various plants & machineries - extended period of limitation - HELD THAT:- Hon’ble Apex Court in the case of COMMISSIONER OF CENTRAL EXCISE & CUSTOMS VERSUS MDS SWITCHGEAR LTD. [2008 (8) TMI 37 - SUPREME COURT] has affirmed the decision of Hon’ble Tribunal observing that the recipient is entitled to the credit of duty “paid” - In this case the allegation against the assessee was that the semi-finished goods received from their sister concern was over-valued in order to pass on Modvat credit. The Department denied the credit taken at the recipient’s end. However, the Hon’ble Tribunal held in favour of the assessee and also observed that there was no loss of revenue vide its decision reported as MDS SWITCHGEAR LTD. VERSUS COMMR. OF C. EX., & CUS., AURANGABAD [2001 (4) TMI 130 - CEGAT, MUMBAI]. Hon’ble Supreme Court upheld the judgment of Hon’ble Tribunal. Department also in a Circular No. 1014/2 dated 1st February, 2016 has clarified that the Cenvat Credit of CVD paid voluntarily is admissible, as it is a settled position that a buyer is entitled to avail cenvat credit of duty paid by the supplier - Similar is the situation in the present case as far as the impugned compensation is concerned. Also there is no apparent mensrea on the part of the appellant to evade any duty rather the fact remains is that the duty stands already paid. The Cenvat Credit thereof cannot be disallowed. Extended period of limitation - HELD THAT:- The SCN should not have been issued or if issued, it should have been within one year of the fact being into notice of the Department - The Department in the present case has invoked the extended period of limitation alleging suppression or misrepresentation on part of the appellant. As already held that there is absence of malafide intent/mensrea, the Department is held not entitled to invoke the said extended period of limitation. Appeal allowed - decided in favor of appellant.
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