Contact us   Feedback   Subscription   New User   Login      
Tax Management India .com
TMI - Tax Management India. Com
Extracts
Home List
← Previous Next →

2015 (8) TMI 390 - CESTAT NEW DELHI

2015 (8) TMI 390 - CESTAT NEW DELHI - 2015 (39) S.T.R. 869 (Tri. - Del.) - Clandestine removal of goods - Availment of inadmissible CENVAT Credit - Held that:- Goods have been cleared on the strength of 38 gate passes clandestinely without payment of duty. Obviously, these goods were not to be recorded in the receipt units that they have received 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 Dir .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

it 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, I hold appellant is not entitled to avail input service credit on construction services of resi .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

and that extended period of limitation is not invokable - Decided partly in favour of assessee. - Appeal Nos. E/52223-52224/2014-EX(SM) - Final Order Nos. A/51569-51570/2015-EX(SM) - Dated:- 27-4-2015 - Ashok Jindal, Member (J),J. For the Appellant : Ms Sukriti Das, Adv. For the Respondent : Shri R K Mishra, DR ORDER Per: Ashok Jindal: The appellants are in appeals against the impugned orders. As the issue involved is common in both the appeals. Therefore, both are taken up for disposal. 2. The .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

hat 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 .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

cause notice was reduced to ₹ 19,26,966/-. Against the said order appellant filed an appeal before the Ld. Commissioner (A) to challenge the order and Revenue also challenged this order on the premise that the Adjudicating Authority was required to confirm the penalty to the tune of ₹ 23,47,199/- instead of ₹ 19,26,966/-. The Commissioner (A) allowed the appeal of the Revenue and dismissed the appeal filed by the appellant. Aggrieved from both the orders appellant is before me. .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

Therefore, demand on duty is not sustainable. To support this contention she relied on the decision in the case of Vikram 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 i .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

e, they are praying that penalty is not imposable and as the issue of availment of Cenvat Credit on the steel items was not disputed during the relevant period and pending for disposal before this Tribunal. She further submits that the appellant is entitled to take Cenvat Credit on construction services of labour colony in the light of the decisions in the case of Hon'ble High Court of Andhra Pradesh in the case of ITC Ltd. Vs. CCE Hyderabad-2013 (32) STR 288 (AP). Further she submits that t .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ppose the contention of the Ld. Counsel and submits that during the course of the investigation the Managing Director and other officials have admitted that they have cleared goods from their unit to other units on the strength of 38 gate passes and immediately the appellant paid the duty along with interest. Appellant has also paid 25% penalty on the said clearance which shows that appellant has admitted their fault and paid the duty accordingly. He further submits that during the course of the .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ellant is not entitled to take Cenvat Credit. Therefore, Cenvat Credit is rightly denied. On limitation he submits that as the issue of limitation has not been raised by the appellant before the lower authorities. Therefore, same Cannot be raised here. 8. Heard the parties. Considered the submission. 9. In this case there are four issues: a) Whether the appellant are required to pay duty on the clearance on the strength of 38 gate passes which were resumed during the course of investigation or n .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

g director as well as the other officials of the appellant that on the strength of these gate passes they have cleared goods to their other units. It is contested by the Ld. Counsel for the appellant that there was no records found in the receiving units whether they have received the goods on the strength of 38 gate passes or not. The main contention of the Ld. Counsel on this issue admittedly that the goods have been cleared on the strength of 38 gate passes clandestinely without payment of du .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

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 appellant has already reversed Cenvat Credit along with interest. In these circumstances, I hold that penalty is not imposable on the appellant. 12. For denial .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

 

 

 

 

 



|| Home || Acts and Rules || Notifications || Circulars || Schedules || Tariff || Forms || Case Laws || Manuals ||

|| About us || Contact us || Disclaimer || Terms of Use || Privacy Policy || TMI Database || Members || Site Map ||

© Taxmanagementindia.com [A unit of MS Knowledge Processing Pvt. Ltd.] All rights reserved.

Go to Mobile Version