TMI Blog2020 (10) TMI 863X X X X Extracts X X X X X X X X Extracts X X X X ..... herefore, the entire demand raised beyond the normal period is time barred - appeal allowed - decided in favor of appellant. - Service Tax Appeal No.11460 of 2014 - A/11276/2020 - Dated:- 21-10-2020 - MR. RAMESH NAIR MEMBER (JUDICIAL) AND MR. RAMESH NAIR MEMBER (TECHNICAL) Shri. Jigar Shah, Advocate for the Appellant Shri H. K. Jain, Superintendent (AR) for the Respondent ORDER The brief facts of the case are that the appellant M/s. Gaurav Contract Co. were engaged in providing mining service, supply of tangible goods for use services, GTA service, etc. to various customers, the appellants were registered with Service tax. The appellant discharged Service tax liability as may be applicable to them. The appellant also availed the benefit of Cenvat Credit of duties paid on input and capital goods and also service tax paid on input service. The appellant purchased Dumpers/trippers for use in providing the output taxable service i.e. mining service during the period May, 2008 to March, 2009. 2. During the course of audit of the appellant it was observed that the appellant have wrongly availed the Cenvat Credit on Dumpers/trippers as capital goods. The audit o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s no statutory bar in availing the Cenvat Credit on Dumpers/trippers as inputs. He further submits that even if the appellant have wrongly taken the credit under the head of Capital Goods but if the goods are eligible as input it cannot be said that there is wrong availment of credit. In this regard he placed reliance in the case of MODI RUBBER LTD. reported in 2000 (119) ELT 197 (Tri.-LB), JSW STEEL COATED PRODUCTS reported in 2016 (43) STR 280 (Tri.-Mumbai). 4. Without prejudice to the above submission, he also submits that the entire demand in the present case is time barred. The period in dispute in the present case is May, 2008 to March, 2009. The appellants have disclosed the facts of availing the Cenvat Credit of excise duty paid on Dumpers/trippers as capital goods in their periodical ST-3 Returns. He submits that after filing the periodical ST-3 returns, the concerned Superintendent of Central Excise, Rajkot vide his letter dated 09.02.2010. asked the appellant to provide the details of Cenvat Credit availed by them. In response, the appellant vide their letter dated 02.03.2010 provided all the details and explanation to the concerned Superintendent of Central Excise, R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have heard both the sides and perused the records, the issue to be decided by us in the present case is that whether the appellant have rightly taken the Cenvat Credit in respect of Dumpers/trippers either as a capital goods or as an input. After giving careful observation we find that the present case can be disposed off on limitation itself without going into the merit of the case. We find that the appellant have bonafidely availed the Cenvat Credit in respect of Dumpers/trippers and the details of the credit was declared in their ST-3 Returns. Moreover, on the query from the Range Officer, the appellant have submitted invoice wise details of credit which contained the Cenvat Credit taken on invoices of Dumpers/trippers also. Therefore, we find that there is no suppression or wilful suppression of facts to take the undue benefit of Cenvat Credit on the part of the appellant. It is also observed that the issue involves interpretation of Cenvat Credit Rules. On the same issue number of judgments were passed wherein the tribunal has allowed the credit considering the same goods i.e. Dumpers/trippers as inputs. Though, we are not endorsing the judgments given by the tribunal on meri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntrary evidence indicating non-receipt of the relevant invoices had been brought on record by the Revenue. On going through the said letter dated 7-9-2007 (page 479 of appeal paper book) we find that the appellant had furnished detailed statement of Cenvat credit availed along with copies of invoices. Hence, no facts was suppressed from the department in availing the credit. Therefore, in our view, the demand is barred by limitation. 2011 (263) ELT 707- ASIAN TUBES LTD. Vs. COMMISSIONER OF CENTRAL EXCISE AHMEDABAD 5. However, it is seen that the show cause notice for denial of credit of duty amounting to ₹ 2,04,000/- availed on 1-6-06 was issued on 11-9-07 i.e. after normal period of limitation of one year. While dealing with the appellant s above plea of demand being barred by limitation, the Commissioner (Appeals) has observed that though the appellants had regularly submitted the monthly returns, he has not clearly disclosed that he had availed credit of service tax paid on the textile (sic) services rendered for the wind mills situated away from his factory. I find no merits in the above observation and finding of the Commissioner (Appeals). Having accept ..... X X X X Extracts X X X X X X X X Extracts X X X X
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