TMI Blog2019 (7) TMI 1012X X X X Extracts X X X X X X X X Extracts X X X X ..... Appeal allowed on limitation. - Excise Appeals No. E/41761-41763 of 2018 - Final Order No. 40821-40823/2019 - Dated:- 15-4-2019 - MR P. DINESHA, JUDICIAL MEMBER Shri G. Derrick Sam, Advocate, for the Appellant/Assessee Shri L. Nandakumar, AC, Authorized Representative for the Revenue ORDER These appeals are filed by the assessee against the order of the Commissioner of GST and CE (Appeals-I), Chennai, dated 13.04.2018 25.04.2018, whereby the appeals of the appellants were rejected and the orders of the adjudicating authority were upheld in toto. 2. (a) In appeal No. E/41761/2018, for the period May 2012 to January 2014, appellant-assessee was availing Cenvat credit on the duty paid on inputs, capital goods and service tax paid on input services under Cenvat Credit Rules, 2004. On verification it was found that the assessee had received input service credit through ISD invoices passed on by their head office for the period May 2012 to January 2014. It was alleged by the department that those ISD invoices used for passing on input service tax credit related to credit of service tax paid on c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er was taken up for hearing, Shri G. Derrick Sam, Ld. Advocate appeared for the assessee and Shri L. Nandakumar, AC, Ld. AR appeared for the Revenue, I have heard the rival contentions and perused the documents placed on record. 5.1 As regards appeal Nos. E/41761-41762/2019, Shri G. Derrick San, Ld. Advocate submitted that the present demand is not sustainable for the reason that the reversal by ISD in respect of the inadmissible Cenvat credit pertaining to the construction services distributed inadvertently along with interest has been made. In this regard he submitted that once it is clear that the inadmissible Cenvat credit has been reversed by the ISD, further reversal at the unit level will not be required. In support of this contention, Ld. Advocate relied on the Tribunal decisions in CCE Vs. Godfrey Philips India Ltd. 2009 (239) ELT 323, United Phosphorous Ltd. Vs. CCE 2013 (30) STR 509 (Tri.-Ahmd.), Castrol India Ltd. -2013 (30) STR 214 (Tri.-Ahmd.). In view of the above, he submitted that the reversal made at the ISD level is correct and present proceedings initiated the present appellants is not sustainable. Further, reversal by the appellant would am ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the services pertaining to a particular unit has to be distributed to that particular unit and in respect of services pertaining to multiple units was distributed to these particular units on pro-rata basis. He further submitted that the unit on question manufactured Good Knight Coils and Cenvat credit has been correctly distributed by the ISD to this particular unit. The documents related to this issue were produced by the appellant before both the authorities. But, both the authorities have failed to appreciate the submissions in this regard. He submitted that appellant s letter dated 11.09.2013 was self-explanatory indicating the process of distribution of credit. Further, he submitted that the demand is unsustainable in view of the Revenue neutrality. He placed reliance on the Tribunal decisions in STI Industries Vs. CCE 2015 (327) ELT 514 (Tri.-Ahmd.) and Precot Mills Ltd. Vs .CCE 2014 (313) ELT 789 (Tri.-Bang.) in support of his contention. 5.3 Ld. Advocate contended that the demand made at the recipient unit disputing the Cenvat credit as distributed by ISD has been made without any jurisdiction. In this regard he submitted that the eligibility of Cen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an amount of ₹ 9,46,766/- towards service tax along with interest was demanded. The case of the Department is that on a scrutiny of the balance-sheets for the year 2001-02 to 2004-05 and of relevant documents, the Audit Team noticed that the assessee had received cold storage fixed rent charges up to 31 March, 2005 in the amount of ₹ 1.46 crores from Hindustan Lever Limited ( HLL‟) for storage of frozen products. The agreement between the assessee and HLL was for providing clearing and forwarding agent‟s service. The show cause notice referred to the period between 2001-02 and 2004-05 ending on 31 March, 2005. According to the Revenue, the assessee had an agreement with HLL dated 1 May, 2001 under which it was to render services as a clearing and forwarding agent and, in addition, provide a facility for the storage of goods belonging to HLL in a cold storage owned by the assessee. The compensation structure stipulated that the assessee would receive a fixed charge of ₹ 3.50 lacs per month for providing the facility of a cold storage and a reimbursement for clearing and forwarding agent expenses at a stipulated rate. The assessee was called upon to sho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n received for the use of the cold storage facility. 10. On these facts, it is clear that the fact that the assessee was not paying service tax on the fixed monthly charges was known to the Department on 27 September, 2002. The Department evidently had knowledge of the agreement between the assessee and HLL under which the payment of cold storage charges on a fixed monthly basis was part of the agreement. In this view of the matter, the Tribunal, in our view, was justified in coming to the conclusion that the extended period of limitation could not be invoked since there was no suppression of facts on the part of the assessee. In the present case, the period involved is May 2012 to January 2014 and the SCN is dated 17.11.2016. From the documents placed on record there have been queries and replies by the assessee and one of the earliest queries by the Revenue is dated 20.09.2013. There were also replies filed on various dates and one of such replies is dated 10.06.2014 wherein, the details have been explained very clearly covering all the points in dispute. These points clearly show that the Revenue was in fact aware of the activities of the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X
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