TMI Blog2016 (7) TMI 896X X X X Extracts X X X X X X X X Extracts X X X X ..... rvice tax credits were sought to be denied which covered the said period also. The earlier demand was on the maintenance of these buildings whereas the latter demand was on construction of these buildings. The credits taken by the appellants were reflected in the statutory records. If such credits were not available in the records, the question of their being pointed out by the audit does not arise. Further, ld. Commissioner (Appeals) examined the question of time bar with reference to time period between the knowledge of the department and issue of demand and held that knowledge of the department is not relevant to decide the relevant date. As mentioned earlier, the demand for the period 2008-2009 to 2010-2011 has been issued on 10.12.2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appeal. 2. Ld. Counsel for the appellant submitted that on merit, they are eligible for service tax credit on all these transactions. However, ld. Counsel raised strong objection against the impugned order on the ground that the whole demand is hit by time bar in terms of Section 11 A of the Central Excise Act,1944. The period involved is 2008-2009 to 2010-2011, whereas the show cause notice was issued on 10.12.2012 which is clearly beyond the normal period. Neither the show cause notice nor the original order nor the appellate order gave any justifiable reason for invoking extended period of demand. The lower authorities simply contended that the appellants knowingly took ineligible credit and hence, extended period can be invoked . Ld. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a fact that the appellants were earlier issued with a show cause notice on 11.03.2011 based on a Special Audit Report conducted under Section 14 AA of the Central Excise Act, 1944 regarding inadmissible credit of service tax with reference to maintenance of hospitals, directors bungalow, club, etc. Though the said notice was not on construction activity but relates to same period (2008-2009) on allied services. In other words, Special Audit conducted did point out certain irregular availment of service tax credit in respect of hospitals, directors bungalow, club, etc. Based on such objection, proceedings were initiated vide show cause notice dated 11.03.2011. The present proceedings relating to hospitals, schools and staff quarters is ag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... owledge of such credit, being not admissible, has not been substantiated. Even if it is so, if the appellant take credit, which is disputable, that by itself, will not form basis for invoking fraud, etc. Further, two different audits have been conducted. Initially, certain service tax credits for the year 2008-09 were sought to be denied. Thereafter, based on another audit report, further service tax credits were sought to be denied which covered the said period also. The earlier demand was on the maintenance of these buildings whereas the latter demand was on construction of these buildings. 8. In the impugned order, the Commissioner (Appeals) recorded his finding regarding time bar and in para-6 and 7 of the order. He recorded that tho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n or willful suppression. In Anand Nishikawa Co. Ltd. - 2005 (188) ELT 149 (SC), the Hon ble Supreme Court held that suppression of facts can have only one meaning that correct information was not deliberately disclosed to evade payment of duty. In Apex Chemicals Pvt. Ltd. - 1992 (62) ELT 413 (Gujarat), the Hon ble Gujarat High Court held that information, which is not required to be submitted under the law, if not supplied does not amount to suppression. In the present case, the appellant availed credits under the belief that these are rightly eligible to them. No element of fraud or suppression or mis-statement could be brought out by the Revenue in the present case. 10. Considering the above discussion and analysis, I find that the de ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
