TMI Blog2013 (8) TMI 125X X X X Extracts X X X X X X X X Extracts X X X X ..... 11 - SUPREME COURT OF INDIA] has held that when on account of conflicting judgments on an issue during some period, there was scope for entertaining doubt in respect of the view to be taken, the longer limitation period under proviso to Section 11A (1) would not be applicable - In this case allegation of intention to evade payment of Service tax has not even been made even in the show cause notice and only for this reason, the Jurisdictional Assistant Commissioner, after confirming the Cenvat credit demand, has not imposed penalty under Section 11AC, observing that he does not find default or the intention of the assessee to evade the duty, the proviso to Section 11A (1) would not be invokable – Extended period not invokable – Decided in f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d as prescribed in the Board s Circular No. 97/8/2009-ST dated 23/8/2007 and that the appellant do not satisfy the criteria is in this regard, as prescribed in the Board Circular, as the purchase orders show that the sales are for delivery at the factory gate and during transit the appellant were not liable for loss of the goods. On appeal to Commissioner (Appeals), this order of the Assistant Commissioner was upheld vide order-in-appeal dated 27/8/10 against which this appeal has been filed. 2. Heard both the sides. 3. Shri Jatin Singhal, Advocate, the learned Counsel for the appellant, pleaded that firstly the sales are on FOR basis, as supply orders placed on record show that the price is on FOR destination basis, that even if the sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (216) E.L.T. 177 (S.C.) 4. Shri V.P. Batra, the learned Departmental Representative, defended the impugned order by reiterating the findings of the Commissioner (Appeals) in it and emphasised that in terms of judgment of Hon ble Punjab Haryana High Court in the case of Ambuja Cements Ltd. vs. Union of India reported in 2009 (14) S.T.R. 3 (P H), the Cenvat credit of service tax paid on outward freight for transportation upto the customer s premises would be available only when the sales are on FOR destination basis, that the question as to whether the sales are on FOR destination basis has to be decided in terms of the Boards Circular No. 97/8/2007-ST dated 23/08/2007, that based on criteria prescribed in the Circular, the sales are no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act, 1944 or of the rules made thereunder with intent to evade the payment of duty. Interpreting the provisions of proviso to Section 11A, the Apex Court in the case of Continental Foundation Jt. Venture vs. CCE, Chandigarh I (supra) has held that when on account of conflicting judgments on an issue during some period, there was scope for entertaining doubt in respect of the view to be taken, the longer limitation period under proviso to Section 11A (1) would not be applicable. In this judgment, the Apex Court emphasised that for invoking proviso to Section 11A (1) the suppression or misstatement or contravention of the provisions of Central Excise Act or of the rules made thereunder must be deliberate and wilful. Since, in this case such a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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