TMI Blog2019 (5) TMI 1620X X X X Extracts X X X X X X X X Extracts X X X X ..... cted by the audit conducted in the Appellant s factory by the Department. It is admitted fact that the Appellant has taken Central Excise registration in the year 2009 and also started filing ER-1 returns with the Department. In such a circumstances, the extended period for raising demand is not available to the Appellant. The similar issue has been decided by this Tribunal in their own case HINDALCO INDUSTRIES LTD VERSUS C.C.E ST, JABALPUR [2018 (10) TMI 392 - CESTAT NEW DELHI] where it was held that There is no allegation of fraud, suppression, or falsification of records. The issue is simply of interpretation. The invocation of the extended period of limitation is bad and the Show Cause Notice is not maintainable on this ground. The demand is barred by limitation, without going into the merits of the case - appeal allowed - decided in favor of appellant. - Excise Appeal No. 50429 of 2018 - Final Order No. 50752/2019 - Dated:- 29-5-2019 - MR. ANIL CHOUDHARY, MEMBER (JUDICIAL) And MR. BIJAY KUMAR, MEMBER (TECHNICAL) Shri Amit Jain, Advocate - for the appellant Shri S.K. Bansal, Kumar, DR, Shri R.K. Mishra, DR - for the respondent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3,49,55,055/- 3. Technical consultancy services 2,20,26,934/- 4. Erection, Commissioning and Installation Services 4,10,443/- 5. Technical inspection and Certification agency services 75,592/- 6. Construction services 3,73,569/- 7. Works Contract services 7,54,578/- 8. Liaison services for forest and railway clearance 5,880/- 9. Loan processing charges charged by Banks 2,55,58,853/- Total ₹ 8,48,16,924/- 4. The Appellant has st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In such circumstances, the Department was not justified to invoke the larger period of limitation relying on the decision of Hon ble MP High Court at Indore in case of CCE, Indore Vs. Zyg Pharma Pvt. Ltd.- 2017 (358) ELT 101 (MP). Learned Advocate also states that the identical issue came up for consideration before this Tribunal, in the Appellant s own case and the Tribunal by its Final Order No. 52928/2018 dated 28.8.2018 held that the issue involved pertained to interpretation of availment of Cenvat credit and, therefore, extended period of limitation was not available. The Tribunal passed this order in appeal against the order-in-original No. 33/COMMR/CEX/JBP/2016 dated 23.12.2016. 6. Apart from contesting the issue on limitation, the learned Advocate has also relied upon the various decisions on issue regarding availment of Cenvat credit for the aforesaid input services which are in their favour and considering the same the impugned order is not sustainable also on merits. These cases are as under : Sl. No. Services in question Supporting Case-laws ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 2016 (42) STR 1010 (Tri.-Ahmd.); Deepak Fertilizers Petrochemicals Corpn. Ltd. Vs. CCE, 2013 (32) STR 532 (Bom.). 6. Loan processing charges charged by Banks (Banking and Financial services) ₹ 2,55,58,853/- Sundaram Clayton Ltd. Vs. CCE, 2016 (42) STR 741 (Tri.-Chennai); Aluminium Powder Co. Ltd. Vs. CCE, 2016 (42) STR 776 (Tri.-Chennai); BS B Safety Systems India Ltd. Vs. CCE, 2017 (52) STR 174 (Tri.-Chennai). 7. Liaison services for forest and railway clearance ₹ 5,880/- Sai Life Sciences Ltd. Vs. CCE, 2017 (51) STR 55 (Tri.-Hyd.); Adani Port Special Economic Zone Ltd. Vs. CST, Ahmedabad, 2016 (42) STR 1010 (Tri.-Ahmd.); Deepak Fertilizers Petrochemicals Corpn. Ltd. Vs. CCE, 2013 (32) STR 532 (Bom.). 7. Learned Authorised Representative, on behalf of Revenue, supported the impugned order and also submitted a writte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under the main clause of definition of input service. The similar issue has been decided by this Tribunal in their own case, [ Hindalco Industries Ltd. (supra)], where it has been held as under: 9. Having considered the rival contention we are satisfied that there is no allegation of fraud, suppression, or falsification of records. The issue is simply of interpretation. Under these facts and circumstances and the admitted position, we find that the invocation of the extended period of limitation is bad and the Show Cause Notice is not maintainable on this ground. 10. Accordingly, we allow the appeal on the issue of limitation. The impugned order is set aside. Appellant is entitled to consequential benefit in accordance with law. Also, we find that the issue has been detected by the audit conducted in the Appellant s factory by the Department. It is admitted fact that the Appellant has taken Central Excise registration in the year 2009 and also started filing ER-1 returns with the Department. In such a circumstances, the extended period for raising demand is not available to the Appellant as held in the case of Zyg Pharma Pvt. Ltd. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e available to the Revenue in absence of any material to indicate suppression on the part of the respondent-assessee. It is not in dispute that there was no suppression nor any misrepresentation in respect of Cenvat credit availed by the respondent-assessee in respect of these services. 7 In the aforesaid case also, the availment of credit was discovered during the course of audit when detailed examination of material was done. 8 In the present case, there was no suppression or misrepresentation . in respect of availment of CENVAT credit and, therefore, this Court is of the considered opinion that in the light of the judgment delivered by the Division Bench of Gujarat High Court, the Tribunal was justified in remanding the matter back and holding that mandatory equal penalty and extended period of 5 years are not attracted. The High Court of Karnataka in the case of Commissioner of Central Excise. Bangalore v. Sanmar Speciality Chemicals Ltd., reported in 2016 (43) S.T.R. 347 (Kar.) in paragraphs 7 and 8 has held as under : 7. It is an admitted fact that the input tax credit was claimed in the return of the assessee fr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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