TMI Blog2019 (2) TMI 956X X X X Extracts X X X X X X X X Extracts X X X X ..... ows the availment of credit by the appellant on different input services. Even if there was some mismatch in the ST-3 returns and the worksheets, it was incumbent on the Department to call for the reports while examining the ST-3 returns but the same was not done and it was only at the time of audit this was noticed and thereafter, show-cause notice was issued on 17.10.2012 for the period 2007-08 which is completely barred by limitation as the Department has not brought in any material on record to show that there was suppression of facts with intent to evade payment of duty by the appellant. The Department cannot allege suppression of facts with intent to evade payment of tax. Further, in the impugned order, the limitation aspect has no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it has availed credit of service tax paid on Construction Services and Architect Services , which is not relatable to any output service and hence, appeared ineligible as per provisions of Rule 2(l) of CENVAT Credit Rules, 2004. The inadmissible CENVAT credit on this account worked out to ₹ 2,58,89,893/-. The wrong availment of CENVAT credit on this account worked out to ₹ 2,58,89,893/- and the same appeared recoverable with interest in terms of Rule 2(l) of the CENVAT Credit Rules, 2004 read with Section 73(1) and Section 75 of Finance Act, 1994 and Rule 14 of CENVAT Credit Rules, 2004. Further, audit team had also noticed that the assessee had availed excess CENVAT credit for the year 2007-08 to the extent of ₹ 44,31,95 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at there is no irregular availment of CENVAT credit in CENVAT credit account maintained by the appellant. He further submitted that in the show-cause notice, the only allegation was that the credit availed amount as disclosed in the ST-3 returns was more than amounts mentioned in the worksheets enclosed along with the said returns. He also submitted that the amounts disclosed in the ST-3 returns as compared to the worksheets cannot be concluded as irregular availment of credit and figures stated in the ST-3 returns alone cannot be taken as the basis for confirming the demand. He further submitted that the department has not examined as to whether the appellant took CENVAT credit on the basis of valid duty paying documents; whereas the Depar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ITR 191 (SC) wherein it has been held that when all primary facts, inferences of facts and inferences of law were available with the Revenue having been filed with the returns, the question of saddling the appellant with liability under the extended period of limitation could not have arisen. Further, he submitted that even in the show-cause notice, there is no allegation of suppression of fact as the appellants have filed the ST-3 returns and the worksheets and the show-cause notice only alleged irregular availment of credit merely on the basis of mismatch of the amounts between ST-3 returns and the appended worksheet. He further relied upon the following decisions: Chandra Shipping Trading Services vs. CCE: 2009 (13) STR 655 ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... M/s. Peter Miller Packers: 2015-TIOL-652-HC-MAD-CX M/s. Jaishri Eng. Co. Ltd. : 1989 (40) ELT 214 (SC) Madras Petro Chem Pvt. Ltd.: 1999 (108) ELT 611 (SC) 6. After considering the submissions of both the parties and perusal of the material on record, I find that the basis for issuing show-cause notice was a mismatch between the ST-3 returns and the worksheets annexed therewith. Further, I find that the department has not examined as to whether the appellant took CENVAT credit on the basis of valid duty paying documents at the time of issuing show-cause notice. I also find that the appellants have been regularly filing ST-3 returns along with the detailed worksheets enclosed with the said returns, which clearly sh ..... X X X X Extracts X X X X X X X X Extracts X X X X
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