TMI Blog2016 (9) TMI 87X X X X Extracts X X X X X X X X Extracts X X X X ..... etation of statute and hence no penalty is imposable in the instant case. Invokation of extended period of limitation - Demand - Cenvat credit - construction services for the construction of guest house, staff quarters, flooring work at colony, septic tank of security barracks, club house, bank building, hawankund shed, temple etc. - relation to manufacture of final product - Held that:- it is found that during the relevant period the appellant have been regularly submitting all the cenvatable invoices along with their monthly ER-1 return, as evident from the covering letter of monthly ER-1 return. The Ld. Commissioner (Appeals) admitted that on the issue of Cenvat Credit on construction services, there were contradictory judgments and t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cause notice was issued proposing disallowance of Cenvat Credit on the said construction services on the allegation that these services are not in relation to manufacture of final product. The adjudicating authority vide Order-in-Original No. 16/LTU/2010/ADC/VMJ dated 19/03/2010 confirmed the demand of Cenvat Credit amounting to ₹ 17,78,562/-, imposed penalty of equal amount under Section 11AC and also ordered for recovery of interest under Section 11AB of the Central Excise Act, 1944. Aggrieved by the said Order-in-Original the appellant filed appeal before the Commissioner (Appeals), who while disposing the appeal has upheld the demand of Cenvat amount of ₹ 17,78,562/- however he reduced the interest on the basis of amount of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubmitted the details of construction service on which credit was availed. He submits that along with their monthly ER-1 Return therefore regularly submitting the copies of cenvatable invoices. In this regard, Ld. Chartered Accountant taken me to the copies of the covering letter of the monthly ER-1 Return for the period 2005 to 2007. He submits that as per the submission of all the invoice copies on which cenvat credit was availed, the entire facts of availment of cenvat credit on construction services has been disclosed to the department, therefore there is no suppression of fact on the part of the appellant. In support of these submission on time bar, he placed reliance on the following judgments: (i) Union of India Vs. Rajasthan Spinn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Service Tax, Delhi 2012 (25) S.T.R. 483 (Tri.-Del.) (ix) Power Grid Corporation of India Ltd. Vs. Commr. of S.T., New Delhi 2011 (24) S.T.R.307 (Tri.-Del.) (x) Rochem Separation Systems (India) Pvt. Ltd. Vs. Commr. of S.T. Mumbai-I 2015 (39) S.T.R.112 (Tri.-Mumbai) He submits that all the services involved herein are the construction of various building within the factory premises such as guest house, security barracks, bank building, staff quarters, club house, temple tec. He submits that all these construction has been done within the factory premises therefore it is directly or indirectly related to the factory activities only therefore the appellant is entitled for the credit even on merit also. In this regard he placed reli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he part of the appellant as the use of construction service was not declared by the appellant. Therefore both the lower authority have rightly held that there is a suppression of fact on the part of the appellant hence, the extended period was rightly invoked. He placed reliance on the judgments: (i) Commr. of C.Ex. Tiruchirapalli Vs. Shri Suthan Promoters 2010 (19) S.T.R. 646 (Mad.) (ii) Srilankan Airlines Vs. Commissioner of Service Tax, Chennai 2013 (29) S.T.R. 365 (Tri.-Chennai) (iii) Union of Ind-Swift Laboratories Ltd. 2011 (265) E.L.T. 3 (S.C.) (iv) Tech Mahindra Ltd. Vs. Commissioner of C. Ex., Pune-III 2015 (38) S.T.R.1200 (Tri.-Mumbai) He further submits that the interpretation for imposition of penalty and the invo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r of interpretation of statute and hence no penalty is imposable in the instant case. From the above finding, the Ld. Commissioner (Appeals) admitted that on the issue of Cenvat Credit on construction services, there were contradictory judgments and the issue involved is purely the matter of interpretation of statute. This finding of the Ld. Commissioner has not been challenged by the Revenue, therefore it attained finality. With this finding also suppression of fact cannot be alleged on the appellant. For this reason also the extended period of demand could not have been invoked. In view of the above facts, I am of the considered view that in the present case, for the demand of period July 2005 to January 2008, the show cause notice was ..... X X X X Extracts X X X X X X X X Extracts X X X X
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