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TMI Blog2019 (7) TMI 1012X X X X Extracts X X X X X X X X Extracts X X X X ..... ervice tax credit related to credit of service tax paid on construction service, which has been specifically excluded from the definition of input service in terms of Rule 2 (l) of CCR and hence the department concluded that the credit so availed was ineligible. Accordingly, Show Cause Notice dated 17.11.2016 came to be issued proposing the recovery of ineligible credit availed to the tune of Rs. 7,45,431/- along with interest and imposition of penalty under Section 11 AC of the CEA, 1944 read with Rule 15 (2) of CCR. After due process, the adjudicating authority vide Order-in-Original dated 31.10.2017 confirmed the proposals made in the SCN. (b) In appeal No. E/41762/2018, for the period April 2012 to March 2013, it was alleged by the department that those ISD invoices used for passing on input service tax credit was related to credit of service tax paid on construction service, which has been specifically excluded from the definition of input service in terms of Rule 2 (l) of CCR and accordingly issued SCN dated 23.05.2017, proposing the recovery of ineligible credit of Rs. 6,41,601/- along with interest and equal penalty. After due process, the adjudicating authority vide Order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uble payment in respect of the same issue. Further the present demand has been made without any jurisdiction. In the present case the head office of the appellant was ISD and had distributed the credit in respect of the common input services and these facts are not in dispute. Hence, he submitted the eligibility of Cenvat credit distributed by ISD can be examined only at the end of ISD by the concerned jurisdictional authorities and not at the end of the recipient unit and no show cause notice can be issued to the present appellant. Finally, he submitted that extended period is not invokable as the demand is barred by limitation. For this, he submitted that the SCN was issued on 17.11.2016 in respect of the Cenvat credit availed during the period May 2012 to April 2013. For invoking extended period of limitation, the Commissioner (Appeals) has held in paragraph-9 that taking of credit of service tax paid on construction service that too based on ISD invoices, would have gone unnoticed if the department has not undertaken the verification of the records. But, the reversal of the disputed Cenvat credit by the ISD suo moto even before pointing out by the department, as per the prevail ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned only at the end of the ISD by the concerned jurisdictional authorities and not at the end of the recipient unit. He further submitted that extended period of limitation is not invokable since the demand is barred by limitation. In this regard, he submitted that SCN was issued on 18.07.2016 in respect of the Cenvat credit availed during the period April 2012 to March 2013. It was held by the Commissioner (Appeals) that invocation of the extended period of limitation on the ground that the appellant-assessee has wilfully suppressed the facts with an intent to evade payment of duty. He submitted that the appellant-assessee has provided all the information required under law and hence no malafide on the part of the appellant. He submitted that since the appellant is not liable to make any additional payment, interest is not warranted as well as equal penalty under 11AC of the Central Excise Act is not imposable unless there is deliberate defiance of the law. 6. Shri L. Nandakumar, Ld. DR while supporting the findings of the lower authorities, however, submitted that though the law in so far as credit distribution by an ISD is fairly settled by judicial interpretations, but the fac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d storage/warehousing of frozen products. . . . 6. The Tribunal held that the extended period of limitation could not be invoked by the Revenue since the condition precedent under Section 73(1) of the Finance Act had not been fulfilled. The relevant part of the reasoning of the Tribunal is as follows :- "13. Coming to issue of limitation, we find that for the first time the Revenue wrote a letter dated 27-9-2002 asking asessee to pay tax for the period September 2001 to July, 2002. Assessee replied this letter vide their letter dated 8-11-2002. Thereafter there was correspondence on 20-11-2002 from the department and replied by assessee on 9-12-2002. We find that fact that assessee is not paying duty on cold storage was known to department in 2002. Quantum of cold storage charges is already part of agreement and is fixed on monthly basis. We are therefore of the view that extended period based on suppression of fact cannot be invoked in the present case and therefore demand beyond period of one year is time-barred in the present case. Decisions relied on by ld. D.R. do not support the case of the department as those decisions are in respect of clandestine removal of goods ..... X X X X Extracts X X X X X X X X Extracts X X X X
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