TMI Blog2019 (1) TMI 1177X X X X Extracts X X X X X X X X Extracts X X X X ..... nd tower materials. It is also a fact that this issue relates to interpretation of complex legal provision and the matter was referred to the Larger Bench who decided the same in favour of the Revenue - entire demand is barred by limitation and therefore, the entire demand is set aside. On merits, there is a conflict of decision between the Hon’ble High Court of Mumbai and the Hon’ble High Court of Delhi but since I am allowing the appeal of the appellant on limitation, I need not go to the merits of the case - appeal allowed - decided in favor of appellant. - ST/21275/2018-SM - Final Order No. 20081/2019 - Dated:- 22-1-2019 - SHRI S.S GARG, JUDICIAL MEMBER Ms. Neetu James, Advocate For the Appellant Mr. Madhup Sharan, Asst. Commissioner (AR) For the Respondent ORDER Per: S.S GARG The present appeal is directed against the impugned order dated 8.5.2018 passed by the Commissioner (A) whereby the Commissioner (A) has rejected the appeal of the appellant. 2. Briefly the facts of the present case are that the appellant is a provider of telecommunication services, business support services and intellectual property rights services. On verification ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e interest and why penalties under the relevant provisions of the Finance Act, 1994 and the CENVAT Credit Rules, 2004 should not be imposed on them. In adjudication, the proposals raised in the show-cause notice were confirmed by the adjudicating authority through an Order-in-Original. Aggrieved by the Order-in-Original, the appellant filed appeal before the Commissioner (A), who rejected the same. 3. Heard both sides and perused the records. 4. The learned counsel for the appellant submitted that the impugned order is not sustainable in law as the same has been passed without appreciating the facts and the law and the judicial precedents. She further submitted that the angles, channels, and other parts used to construct tower or shelters or affixation of towers are obtained in Completely Knock down (CKD) condition. At the site, they are bolted and placed on a platform either on the ground or on top of the building to ensure that there is no vibration to the towers and the same can be dismantled again and moved to a different place and erected again. She further submitted that the towers, shelters, parts thereof at the time of their receipt were movable goods and therefore, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... submission, she relied upon the decision of the apex court in the case of Pushpam Pharmaceuticals Company vs. CCE: 1995 (78) ELT 401 (SC) wherein the Hon ble Apex Court has held that mere omission to disclose the correct information is not a suppression of fact unless it is deliberate to escape from the payment of duty. She further submitted that in the present case, show-cause notice itself was issued based on information provided by the appellant and therefore, the fact that the appellant was availing credit on tower/tower materials was known to the department and no suppression would be alleged against the appellant for invoking the extended period of limitation. The learned counsel relied upon the following decisions wherein the High Courts / Tribunals have consistently set aside such demands barred by limitation. (i) M/s. Spice Communication Ltd. Final Order No.20047/2017 dated 16.1.2017 passed by Hon ble CESTAT, Bangalore. (ii) Tower Vision India Ltd. vs. CCE: 2016 (42) STR 249 (Tri.-LB) (iii) General Manager, Consumer Mobility, BSNL vs. CCE, Chandigarh: 2014-VIL-325-CESTAT-DEL-ST (iv) M/s. Tata Teleservices Ltd. Others vs. CST, Pune: 201 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... venue. Further, I find that in the case of Continental Foundation JT. Venture vs. CCE, Chandigarh-I: 2007 (216) ELT 177 (SC), the Hon ble apex court held that when a matter is referred to the Larger Bench to resolve a conflict of opinion, in that case, the extended period of limitation cannot be invoked. Further, I find that in the appellant s own case for an earlier period, this Tribunal has categorically held that extended period could not have been invoked in such cases. We reproduce the said findings which are recorded in para 7 of the said decision in appellant s own case wherein the Tribunal has observed as under: 7 .We also find that this issue has been subject matter of litigation before various Benches of the Tribunal and the matter was also referred to the Larger Bench and finally the Larger Bench in the case of Tower Vision (India) Pvt. Ltd. cited supra answered the reference in favour of the Revenue vide its order dt. 16/03/2015 disposing of various appeals including the appeal of the appellant. The Tribunal in the said decision has also followed the decision of the Karnataka High Court in the case of CCE, Bangalore Vs. MTR Food Ltd. [20129282) ELT 196] wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... limitation, (for the period 10/2007 to 09/2008) will sustain and is upheld. Penalty imposed on the appellant under Rule 15 (4) of the CENVAT Credit Rules, 2004 read with section 78 of the Finance Act, 1994 is also set aside. Appeal disposed of on above terms with consequential reliefs, if any. 6.2 Further, I find that in the ratios of the decisions cited supra, it has been consistently held that in such cases extended period of limitation cannot be invoked and by following the ratio of the above said decisions, I am of the view that, in the present case, entire demand is barred by limitation and therefore, the entire demand is set aside. Further, I find that on merits, there is a conflict of decision between the Hon ble High Court of Mumbai and the Hon ble High Court of Delhi as cited supra but since I am allowing the appeal of the appellant on limitation, I need not go to the merits of the case. Consequently, I allow the appeal and hold that the entire demand is barred by limitation and therefore, the impugned order is set aside by allowing the appeal of the appellant with consequential relief, if any. (Order was pronounced in Open Court on 22/01/2019.) - - TaxTMI - TM ..... 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