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2016 (3) TMI 950 - CESTAT MUMBAI

2016 (3) TMI 950 - CESTAT MUMBAI - TMI - Availment and utilization of CENVAT credit - extended period of limitation invoked - Held that:- The appellant has not suppressed any facts from the department. The appellant has mentioned in all the statutory records viz. RG23A (Part II), TR-6 challan and ER-1 returns regarding the factum of availment of the credit, but the department has not considered these factual aspects before passing the impugned order. - The impugned order has traveled beyond .....

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ssued on 24.9.2009 for alleged inadmissible credit availed by the appellant during the period July 2007 by invoking the extended period whereas in fact there has not been any suppression or wilful declaration by the appellant and the entire records were with the department, wherein the appellant has reflected the availment of credit. - Decided in favour of assessee - Appeal No. E/2003/10-Mum - A/86458/16/SMB - Dated:- 11-3-2016 - MR. S.S. GARG, MEMBER (JUDICIAL) For the Petitioner : Mrs. Kranti .....

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credit on inputs, capital goods and input services under Cenvat Credit Rules, 2004. The CERA audit was conducted at the premises of the appellant and they have observed that the appellant has availed and utilized service tax credit of ₹ 2,80,538/- wrongly because the input services involved is pertaining to construction of shopping complex situated outside the factory premises during the period from June 2007 to December 2007. Thereafter a show cause notice was issued. The appellant filed .....

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arried outside the factory premises. In fact the said construction was done within the central excise registered premises i.e. within the compound of the appellants factory. He also submitted that all the expenses of construction and taxes including service tax were borne by the appellant. The relevant TR-6 challan for the service tax paid was received by the appellant from the service provider i.e. M/s. Swastik Construction, and the entries for having paid the service tax were made in the stat .....

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not in relation to the manufacture of the goods whereas it is not in dispute that the said premises was used by the appellant for the purpose of and in relation to their activities relating to business. In support of this submission, he relied upon the following decisions of the Tribunal:- (i) Vako Seals Pvt. Ltd. vs. CCE, Mumbai-V reported in 2015 (40) STR 594; (ii) CCE, Meerut vs. Bajaj Hindustan Ltd. reported in 2015 (40) STR 379. 3.1 The learned counsel further submitted that the credit invo .....

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eled beyond the scope of the allegations made in the show cause notice and, therefore, deserves to be set aside. For this, he placed reliance on the following decisions of the Tribunal:- (i) Gujarat Forging Ltd. vs. CCE, Rajkot reported in 2014 (36) STR 677; (ii) DHL Logistics Pvt. Ltd. vs. CST, Mumbai-I reported in 2014 (36) STR 874. 3.3 He also submitted that the entire demand is time barred as the show cause notice was issued on 24.9.2009 for alleged inadmissible credit availed by the appella .....

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ated the findings of the Commissioner (Appeals). 5. I have heard the learned counsel for the parties and perused the records carefully. 6. The only question in this appeal is whether the appellant has rightly availed and utilized the credit or not. I find that prior to 1.4.2011, construction services was included in the definition of input services and in this case, the credit was availed for the year 2007, which is very much admissible at that time. 6.1 Further, I also find that the appellant h .....

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