TMI Blog2015 (8) TMI 390X X X X Extracts X X X X X X X X Extracts X X X X ..... e meant for their internal movement of goods as appellant have not supplied for any other movement in their factory is covered by gate passes and no gate pass has been produced by the appellant for verification. In these circumstances, the claim of appellant is not sustainable. - Decided against the assessee. For denial of input service Credit on construction services of residential colony I find that there are divergent views of two High Courts i.e. the Hon'ble High Court of Bombay and High Court of Andhra Pradesh. Therefore, there is no decision of jurisdictional High Court available before me. Therefore, I am examining issue independently. As residential colony have no nexus with the manufacturing activity of the appellant. Therefore, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dmitted their clandestine removal of the goods on the strength of gate passes without paying duty and consequent to that the duty was paid for the clearance of these 38 gate passes. It was also found that appellant has availed Cenvat Credit on steel items to the tune of ₹ 2,23,221/- which was used in civil construction of factory which was not admissible to the appellant. Further, the appellant also availed Cenvat Credit of ₹ 1,93,972/- on construction services which was used for construction of labour colony. In these set of facts a show cause notice was issued to the appellant for: a) payment of duty on the clearance made by them against 38 gate passes along with interest and imposition of penalty. b) Denial of Cenvat Cr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ram Cement (P) Ltd. Vs. CCE Kanpur-2012 (286) ELT 615 (Tri-Del) which has been affirmed by the Hon'ble High Court of Allahabad reported in 2014 (303)00 ELTA82 (Allbd). 5. She further submits that appellant has not contested the denial of Cenvat Credit on the steel items and same has been reversed along with interest. The appellant is seeking waiver of penalty on these steel items as these were in dispute during the period whether they are entitled to take Cenvat Credit on the steel items or not. 6. She also submits that the searches were conducted at other units also but nowhere it was found that they have received unaccounted goods from the appellant in their factory. She further submits that the appellant is not disputing the de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rance which shows that appellant has admitted their fault and paid the duty accordingly. He further submits that during the course of the investigation appellant has not received the goods only invoices has been received. This shows the character of the appellant by indulging in such type of activities. For denial of Cenvat Credit on construction services she submits that the issue has been settled by Hon'ble High Court of Bombay in the case of Manikgarh Cement Vs. CCE Nagpur-2010 (20) STR 456 (Bom) where it has been held that the Cenvat Credit on construction services and repairs and maintenance of residential colony the appellant is not entitled to take Cenvat Credit. Therefore, Cenvat Credit is rightly denied. On limitation he submit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ved the goods without recovery of invoices in their unit. Therefore, these arguments have no force. Further, I find that it is admitted by the Managing Director as well as other officials that they have cleared goods on the strength of 38 gate passes to their other units. It means that gate passes are meant for their internal movement of goods as appellant have not supplied for any other movement in their factory is covered by gate passes and no gate pass has been produced by the appellant for verification. In these circumstances, the claim of appellant is not sustainable. 11. For imposition of penalty on steel items I find that issue whether appellant is entitled to take Cenvat Credit on steel items or not was in dispute. Therefore, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of law, we hold that the department was not justified in invoking the extended period of limitation under Section 11A of the Central Excises and Salt Act, 1944 and accordingly, finding of the Tribunal on this point is reversed. We hope that the department shall initiates some action against the erring officer /official for issuing show cause notice to the assessee after a gap of approximately two years and four months from the date of inspection at the factory of the assessee. 15. By observing that the Hon'ble Apex Court has held that department was not justified in invoking extended period of limitation. Following the precedent decision in the case of Orissa Bridge Construction Corpn. Ltd. (Supra) I hold that facts of this case a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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