TMI Blog2020 (2) TMI 225X X X X Extracts X X X X X X X X Extracts X X X X ..... transportation service was not under the purview of Service Tax. Moreover, the activity of the appellant is not trading and they are neither manufactures nor trader and full Excise duty has been paid on all the goods purchased by them and no CENVAT credit was availed as output service was not taxable. In view of this, this demand is also not sustainable in law. Demand of CENVAT credit of ₹ 58,775/- is concerned - HELD THAT:- The Commissioner (A) has rightly disallowed this credit on the grounds that there is an amendment in the definition of input service w.e.f. April 2011. Input service credit of ₹ 52,875/- availed during January 2014 on input service provided by M/s Barley Person C India Ltd. for pre-feasibility study connected for laying petroleum pipeline from Mangalore to Kannur in Kerala - HELD THAT:- The appellant, during the course of audit, has agreed to reverse the same. Similarly, the CENVAT credit on construction of civil structure is concerned, the appellant availed the CENVAT credit to the extent of ₹ 52,113/- and during the course of audit agreed to reverse the same. Time limitation - April 2013 to March 2015 - HELD THAT:- The disputed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ess). (iii) Non-payment of amount under Rule 6(3) CENVAT Credit Rules, 2004, in respect of exempted services provided; ₹ 1,03,947/-. (iv) Wrong availment of CENVAT credit on Group Life Insurance, Group Health Insurance and Group Personal Accident Insurance services amounting to ₹ 58,775/-. (v) Wrong availment of CENVAT credit on Manpower Supply Services for Pantry Services, services received in the assessee s Guest House and for Garden Maintenance amounting to ₹ 1,91,916/-. (vi) Wrong availment of CENVAT credit on the services attributable to survey for conducting feasibility study of laying petroleum pipe lines amounting to ₹ 52,875/-. (vii) Wrong availment of CENVAT credit on the services attributable to Construction Service and Work Contract services in respect of Construction Services amounting to ₹ 52,113/-. 2.1. Consequently, a show-cause notice dated 4.3.2016 was issued and was adjudicated vide OIO No.BLR-EXCUS-04-049-17-18 dated 21.3.2018 wherein the Joint Commissioner of Central Tax, North Commissionerate, Bangalore vide her OIO No.BLR-EXCUS-004-RAS-049-17-18 dated 21.3.2018. i. Dropped the demand of service tax amounting ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the statutory books of accounts/returns submitted to the Department, and all the relevant information was disclosed in the statutory returns submitted to the Department. The Commissioner (A) vide the impugned order confirmed the demand of ineligible credit but dropped the penalty to 50%. 3. Heard both the parties and perused the records. 4. Learned Counsel for the appellants submitted that the impugned order is not sustainable in law as the same has been passed without properly appreciating the facts and the law. He further submitted that the demand of ₹ 3,81,152/-/ has wrongly been confirmed by both the authorities. He also submitted that the appellant has taken land on rent from M/s HPCL on annual lease renewal basis for its station and paying the lease rent and Service Tax at applicable rates and claiming CENVAT credit for the same. During the year 2013-14, M/s HPCL raised the full invoice including the Service Tax in which the appellant also paid full Service Tax to M/s HPCL and thereafter deducted ₹ 36,26,249/- on net payment towards recovery of excess lease rent paid in the past due to de-release of a portion of a lease. He further submitted that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re is no direct nexus between the input service and the business activities of the appellant. Learned Counsel further submitted that CENVAT credit of ₹ 52,113/- was wrongly disallowed on the ground that credit was taken on works contract service. He further submitted that CENVAT credit of ₹ 52,875/- was wrongly denied which pertains to feasibility study for laying pipelines from Mangalore to Kannur. Learned Counsel further submitted that the entire demand is time barred and the appellant was not suppressed the material facts with intention to evade payment of tax. He further submitted that the appellant is a Public Sector Undertaking and has maintained proper accounts and all the CENVAT credit availed has been accounted for in the books of accounts some discrepancies were noticed during the course of audit, out of which some were conceded by the appellant and amount was reversed but with regard to certain credit, the appellant contested the same in the present appeal. He further submitted that suppression cannot be alleged against a PSU in view of various decisions of the Tribunal and High Court. In support of his submission, he relied upon the following decisions: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... credit was denied. The appellants cite CBEC Circular No.943/4/2011-CX dated 29.4.2011 to drive the point in their favour and argue that group insurance was provided to employees to comply with the statutory obligation and not primarily for their personal use or consumption. I disagree as the benefit can be used or consumed only by or on behalf of the insured person. I also find their reliance to CCE vs. Stanzen Toyotetsu [2011 (23) STR 44] to be inapplicable, as the Hon ble Court dealt with a situation prior to the amendment brought about by the Finance Act, 2011. It is seen that the provision of these services are for the consumption and personal use of employees only. It may be a welfare activity but the same is not used in or in relation to the provision of output service. The legislature has specifically excluded this service from the ambit of input services after April 2011. Also the words activities relating to business was removed from the definition of input services. In view of the specific exclusion from the definition, the credit on impugned service is not available to the assessee after 01.04.2011. Tribunal in the case of Applied Micro Circuits India Ltd. vs. CCE, Pu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /- and during the course of audit agreed to reverse the same. Further, the argument of the appellant that the entire demand is barred by limitation is concerned, I find that the disputed period in this case is April 2013 to March 2015 whereas the SCN was issued on 04.03.2016 alleging suppression of material fact with intent to evade payment of duty. Further, I find that the appellant is a PSU and is maintaining proper books of accounts in which all the transactions are recorded and some discrepancies were found during the course of audit; some of which appellant agreed and reversed ineligible CENVAT credit but with regard to others, the appellant contested the same and thereafter a SCN was issued and adjudication was done. Since all the discrepancies were noticed on the basis of audit, it cannot be alleged that the appellant being a PSU have indulged in suppression of material fact with intent to evade payment of tax. Since suppression cannot be alleged against the appellant, hence invoking the larger period of limitation to confirm the demand is not tenable in law. Therefore, I am of the considered view that the entire demand is barred by limitation. 7. In view of my discussion ..... X X X X Extracts X X X X X X X X Extracts X X X X
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