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2020 (2) TMI 225 - AT - Service TaxCENVAT Credit - Right of User (ROU)-sharing/leasing of immovable property service - exempted services - Rule 6(3) CENVAT Credit Rules, 2004 - extended period of limitation - HELD THAT:- The demand of ₹ 3,81,152/- on the lease rent amount paid to M/s HPCL during the previous years and got reimbursed in the year 2013-14 is not sustainable because the appellant has paid the Service Tax on gross amount without any deduction of Service Tax and M/s HPCL has deposited the gross Service Tax to the Department without claiming any refund and only adjustment was made on the net amount payable to M/s HPCL. Therefore, the Service Tax Department has been paid with full amount of Service Tax and the demand of Service Tax on refund is not sustainable. Demand of Service Tax of ₹ 1,03,947/- under Rule 6(3) of CCR, 2004 - HELD THAT:- The appellants have not rendered any exempted service by way of trading, in fact, the appellant had purchased the material during the year 2000 to 2002 and paid the full Excise duty and did not avail any CENVAT credit because at that time transportation service was not under the purview of Service Tax. Moreover, the activity of the appellant is not trading and they are neither manufactures nor trader and full Excise duty has been paid on all the goods purchased by them and no CENVAT credit was availed as output service was not taxable. In view of this, this demand is also not sustainable in law. Demand of CENVAT credit of ₹ 58,775/- is concerned - HELD THAT:- The Commissioner (A) has rightly disallowed this credit on the grounds that there is an amendment in the definition of “input service’ w.e.f. April 2011. Input service credit of ₹ 52,875/- availed during January 2014 on input service provided by M/s Barley Person C India Ltd. for pre-feasibility study connected for laying petroleum pipeline from Mangalore to Kannur in Kerala - HELD THAT:- The appellant, during the course of audit, has agreed to reverse the same. Similarly, the CENVAT credit on construction of civil structure is concerned, the appellant availed the CENVAT credit to the extent of ₹ 52,113/- and during the course of audit agreed to reverse the same. Time limitation - April 2013 to March 2015 - HELD THAT:- The disputed period in this case is April 2013 to March 2015 whereas the SCN was issued on 04.03.2016 alleging suppression of material fact with intent to evade payment of duty. Further, the appellant is a PSU and is maintaining proper books of accounts in which all the transactions are recorded and some discrepancies were found during the course of audit; some of which appellant agreed and reversed ineligible CENVAT credit but with regard to others, the appellant contested the same and thereafter a SCN was issued and adjudication was done - Since all the discrepancies were noticed on the basis of audit, it cannot be alleged that the appellant being a PSU have indulged in suppression of material fact with intent to evade payment of tax. Since suppression cannot be alleged against the appellant, hence invoking the larger period of limitation to confirm the demand is not tenable in law - the entire demand is barred by limitation. Appeal allowed - decided in favor of appellant.
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