TMI Blog2018 (9) TMI 171X X X X Extracts X X X X X X X X Extracts X X X X ..... Furnace Oil, which facts was being reflected by them in the ER-1 Returns - When admittedly the appellant was paying service tax and was reflecting said payment in the returns filed by them and was also reversing the Cenvat credit, it cannot be said that such an act of the assessee was with a mala fide mind to evade payment of duty of excise - extended period not invocable. The Tribunal in the case of M/s K. R. Packaging vs. Commissioner of Central Excise & Service Tax, Meerut-I, [2017 (2) TMI 893 - CESTAT NEW DELHI] has dealt with an identical issue and has held that where the activity amounted to manufacture and was required to pay duty of excise but the assessee paid the service tax and regularly filed the service tax returns without ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ue entertained a view that the appellants are required to pay duty of excise on the galvanized pipes, inasmuch as galvanization amounts to manufacture in terms of the Chapter note 4 of Chapter 73 of CETA, 1985. Accordingly, they were issued a show cause notice dated 20/04/2012 raising demand of duty of ₹ 13,97,727/- for the period April, 2007 to September, 2007 in respect of job work done by them. The said show cause notice culminated into an order passed by the Original Adjudicating Authority vide which the demands were confirmed and penalties were imposed upon manufacturing unit, in addition to imposition of penalty of ₹ 2 lakhs on Shri D. N. Agarwal, Managing Director. Appeal against the said order did not succeed before Comm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rvice tax on the said process and were reversing the credit of Zinc and Furnace Oil, which facts was being reflected by them in the ER-1 Returns. While dealing with the said plea of the assessee Commissioner (Appeals) has observed as under:- 8. As far as the submissions made by the appellant regarding suppression of the facts from department is concerned, I find that the contention of the appellant that they were reversing the credit taken on zinc and furnace oil used for job work and the department was throughout aware of the fact that they were carrying out job work and at the same time the department was also aware of the fact that they were not paying duty on such job work is not convincing as job work activity can fall either unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iliary Service but fall under the activity of manufacture thereby attracting Central Excise duty and for this act of suppression and willful avoidance of liability to pay Central Excise duty, the appellant is liable to pay penalty in consequence of Section 11 AC of the Central Excise Act, 1994. 9. Further the appellant has also contended that when they were reversing Cenvat credit in respect of zinc and furnace oil in connection with job work and for certain period they have paid Service Tax also, the department was bound to consider the same while determining the final duty liability finds merit in view of the settled principle that same goods or services cannot be taxed twice. I find that the appellant deserves to claim the already ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee s records only. In such a case no mala fide can be attributed to the appellants so as to invoke the longer period. To the same effect is the Tribunal s decision in the case of Commissioner of Central Excise, Daman vs. Gayatrishakti Paper Boards Ltd. 2013 (294) E.L.T. 260 (Tri.-Ahmd.) and a latest decision of this Bench in the case of B. N. Pack vide Final Order No.A/70319/2018-EX[DB] dated 18/01/2018. 6. In view of the foregoing discussion, we hold that the demand of duty is not sustainable as the same is barred by limitation. Accordingly, we set aside the impugned order and allow both the appeals with consequential relief to the appellants. ( Pronounced in Court on 04/09/2018 ) - - TaxTMI - TMITax - Central Excise ..... X X X X Extracts X X X X X X X X Extracts X X X X
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