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M/s. Dwarikesh Sugar Industries Ltd. Versus Commissioner of Central Excise & Service Tax (LTU) , Mumbai

2016 (9) TMI 87 - CESTAT MUMBAI

Imposition of penalty - appellant contend that it is purely a matter of interpretation - Cenvat Credit in respect of 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. - Held that:- in this matter I observe that there are various contradictory judgments of Tribunals on the similar issue and Cenvat credit on services received in residential complex/colony is al .....

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ant 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 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. .....

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er is set aside. - Decided in favour of appellant - Appeal No. E/290/2011-MUM - ORDER NO. A/87829/2016-WZB/SMB - Dated:- 8-6-2016 - Shri Ramesh Nair, Member (Judicial). Vinod Awtani, C.A. for the Appellant. Shri R.K. Maji, Asstt. Commr. (A.R) for the Respondent. ORDER: Per: Ramesh Nair Appeal is directed against Order-in-Appeal No. RBT/75/LTU/MUM/2010 dt. 30.11.2010 passed by the Commissioner (Appeals) Central Excise & Service Tax LTU, Mumbai, whereby Ld. Commissioner partly allowed the appe .....

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ing 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 .....

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on behalf of the appellant submits that the Ld. Commissioner (Appeals), has dropped the entire penalty on the ground that on the issue of Cenvat Credit involved in the present case there are contradictory judgments and the issue is purely matter of interpretation of statute. However, the Ld. Commissioner has not given relief on the time bar ground in respect of demand of Cenvat Credit on the ground that the appellant has not submitted details of construction service on which cenvat credit was av .....

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er authorities that the appellant have not submitted 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 .....

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al Excise, Surat-II 2012-TIOL-1702-CESTAT-AHM (iv) M/s. Saurashtra Cement Ltd. Commissioner of Central Excise, & Service Tax, Bhavnagar 2015-TIOL-1954-CESTAT-AHM (v) CCE, Meerut-II Vs. M/s. Simbhaoli Sugars Ltd. 2013 (7) TMI 754-CESTAT New Delhi He further submits that it is admitted by the Ld. Commissioner (Appeals), the question involved in the present case is purely of a interpretation of law for this reason also extended period of demand cannot invoked. In this regard he placed reliance .....

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292 (Tri.-Chennai) (vi) Singh Brothers Vs. Commissioner of Cus. & C. Ex. Indore 2009 (14) S.T.R. 552 (Tri.-Del.) (vii) ITW India Ltd.Vs. Commissioner of Central Excise, Hyderabad 2009 (14) S.T.R. 826 (Tri.-Bang.) (viii) South City Motors Ltd. Vs. Commissioner 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 2 .....

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reliance on the following judgments: (i) Reliance Industries Ltd. Vs. Commissioner of CE & ST (LTU), Mumbai 2015 (11) TMI 100 CESTAT Mumbai (ii) Commissioner of Cus. & C. Ex., Hyderabad-III Vs. ITC Limited 2013 (32) S.T.R. 288 (A.P.) (iii) Commissioner of Central Excise, Meerut Vs. Bajaj Hindustan Ltd. 2015 (40) S.T.R. 379 (Tri.-Del.) (iv) ISMT Ltd. Vs. Commr. of Cus. & C. Ex., Aurangabad 2015 (40) S.T.R.596 (Tri.-Mumbai) 4. On the other hand, Shri R. K. Maji, Ld. Assistant Commissi .....

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) S.T.R. 284 (Tri.-Mumbai) (iii) Hindustan Zinc Ltd. Vs. Commissioner of Central Excise, Jaipur-II 2011 (270) E.L.T. 111 (Tri.-Del.) (iv) Infosys Ltd. Vs. Commissioner of Service Tax, Bangalore 2015 (37) S.T.R. 862 (Tri.-Bang.) (v) Vikram Cement Vs. Commissioner of Central Excise, Indore 2009 (242) E.L.T. 545 (Tri-.Del.) (vi) Commissioner of C.Ex. & Customs Vs. Gujarat Heavy Chemicals Ltd. 2011 (22) S.T.R. 610 (Guj.) He further submits that there is a suppression of fact on the part of the a .....

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oratories 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 invocation of extended period need not to be same. Therefore even though the Commissioner (Appeals) is dropping the penalty, invocation of extended period cannot be disputed as held in the decision of Executive Engineer, Mhaisal Pump House-II Vs. Commissioner of Central Excise, Pune 2 .....

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