TMI Blog2017 (11) TMI 1331X X X X Extracts X X X X X X X X Extracts X X X X ..... ere it was held that When all this material was made available to the department and the classification list have been approved and RT-12 returns assessed down the years, it is difficult to find any justification for upholding the allegation of misstatement or suppression of facts. During the relevant period there was no provision with regard to reversal of credit on common input services relating to trading activity. But vide amendment dated 01.03.2011 in Rule 2(e) providing the trading as an exempted service and a formula was incorporated in Rule 6 for reversal of credit - Therefore, the issue relates to interpretation of the said provision where it is applicable prospectively or retrospectively - longer period of limitation invoked by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pellant filed the appeal before the Commissioner (Appeals) who rejected the appeal. Hence the present appeal. 2. Heard both the parties and perused the records. 3. The learned counsel for the appellant submitted that the impugned order is not sustainable in law as the same is passed contrary to the provisions of the Act and also contrary to the binding judicial precedent. He further submitted that during the relevant period, the activity of trading undertaken by the appellant was not covered under the definition of exempted services under the Cenvat Credit Rules, 2004. The trading activity cannot be treated as service at all in the first place and therefore can never be treated as exempted service for the purpose of observing the requ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed that the longer period of limitation is not invocable in the present case as the facts were within the knowledge of the Department as early as 2010 when the Department has observed the fact of availment of input service credit commonly used both in manufacture and trading activities in their letter dated 03.03.2010 and the audit note dated 12.01.2010. He further submitted that in spite of full knowledge of the Department show-cause notice was issued only after two years on 30.03.2012. He also submitted that when all the facts are within the knowledge of the Department, the allegation of suppression and invocation of extended period of limitation is not sustainable. For this submission, he relied upon the following decisions: a) Comm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ales V. CCE - 2015 (40) STR 1121 (Tri.-Del.) d) CCE V. Elder Pharmaceuticals Ltd. - 2015 (37) STR 241 (Tri.-Mumbai) 3.4. He also submitted that the longer period of limitation is not invocable as the details of trading was available in the Balance Sheet of the appellant during the relevant period on the basis of which the demand has been raised and the appellant has not suppressed any facts with intent to evade payment of duty. For this submission, he relied upon the decision in the case of Appollo Tyres V. CCE - 2014 (36) S.T.R. 835 (Tri.-Bang.) and CCE V. Hindustan Motors Ltd. - 2012 (25) S.T.R. 292 (Tri.-Del.). 4. On the other hand the learned AR reiterated the findings of the impugned order and submitted that tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the Department vide letter dated 09.04.2010 by the assessee. But the Department issued the show-cause notice only after two years on 30.03.2012. When all the facts were in the knowledge of the Department then the meaning of suppression and invoking the extended period of limitation is not sustainable in view of the judgment in the case of Commissioner of Central Excise Mumbai Vs. Essel Propack Ltd. - 2015 (323) E.L.T 248 cited supra . Further I also find that during the relevant period there was no provision with regard to reversal of credit on common input services relating to trading activity. But vide amendment dated 01.03.2011 in Rule 2(e) providing the trading as an exempted service and a formula was incorporated in Rule 6 for re ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
