TMI Blog2023 (2) TMI 734X X X X Extracts X X X X X X X X Extracts X X X X ..... emand of ineligible cenvat credit issued beyond the period of limitation was dropped considering that the issue was a debatable issue. This Court having already rendered its decision on the Tribunal order impugned herein, we are not persuaded to take any other view. The affidavit filed on behalf of the Revenue does not elicit any distinguishing feature. Learned Counsel for the Revenue has also not brought any material on record to demonstrate that the decision dated 2nd April 2018 in CEXA 6 of 2017 has been a subject matter of any further challenge. Learned counsel for the Appellant-Revenue has not been able to demonstrate any material difference or distinguishing feature in the facts of this case - There being neither any perversity nor any error on the face of the record, the appeal does not raise any substantial question of law - Appeal dismissed. - CENTRAL EXCISE APPEAL NO. 92 OF 2019 - - - Dated:- 15-2-2023 - DHIRAJ SINGH THAKUR ABHAY AHUJA, JJ. For the Appellant : Ms. P. S. Cardozo wit Ms. Sangeeta Yadav. For the Respondent : Mr. Prasad Parajape i/b Lumiere Law Partners. JUDGMENT:- 1. This is an appeal preferred under Section 35G of the Cen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (v) All goods falling under chapter heading 82,84,85,90 heading No. 68.02 and sub heading 6801.10 of the First Schedule to the Excise Act. (vi) Pollution Control Equipments. (vii) Components, spares and accessories of the goods specified at (i) and (ii). (viii) Moulds and Dies, jigs and fixtures. (v) Refractory and Refractory materials. (viii) Tubes and pipes and fitting thereof and (ix) Storage Tank. USED (3) In factory of the manufacturer of the final product, but does not include any equipment or appliance used in any office, or (4) For providing output services. 7. The towers were erected to hoist Antennas at Cell Sites. The goods used in the erection of Tower falling under the Chapter Nos. 34, 37, 39, 40, 45, 49, 58, 72, 73, 76, 82, 83, 94 and 99 of the Central Excise Tariff Act, 1985 (CETA). Goods classifiable under these chapters of the Tariff Act, according to the Revenue are not covered under Capital Goods for the purpose of Cenvat Credit as defined in Cenvat Credit Rules (CCR) in terms of Section 2(a) of the CCR. That availment of Cenvat credit of duty on the goods used for erection of Telecom Tower under t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or denial of Cenvat credit of Rs. 8,36,627/- were also issued to the assessee on similar issue. The Appellant craves leave to refer to and rely upon the copy of said Show Cause Notices as and when produced before this Hon ble Court. 11. The said Show Cause Notices were adjudicated by the Commissioner, Service Tax-II, Mumbai vide Order in Original No. 12-15/S.T.-II/K.K. S./2010 dated 07.10.2010, wherein it was held that the service rendered by the assessee clearly falls under the category of Erection, Commissioning and installation service. The adjudicating authority confirmed the demand in the Show Cause Notice along with interest and also imposed penalty on the Respondent herein. 12. Aggrieved by the Order in Original No. 12-15/S.T.-II/K.K. S./2010 dated 07.10.2010 passed by the Commissioner, the Respondent herein filed an Appeal No. ST/17/11-MUM before the Customs, Excise and Service Tax Appellate Tribunal (CESTAT), Mumbai. 13. The Tribunal vide impugned order No. A/546-558/15/STB dated 16.03.2015 confirmed the demand within limitation period, however, set aside the demand for extended period. The CESTATE observed that issue was of interpretative nature i.e. as to eligib ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was indeed bonafide belief or when the assessee could not prove that there was reasonable cause for the failure. 15. On 14th January, 2020 following order came to be passed by this Court:- A common order was passed by the Customs, Excise Service Tax Appellate Tribunal disposing of group of appeals. The learned counsel appearing for the Respondent pointed out the order of this Court dated 2 April 2018 passed in Central Excise Appeal No. 6/2017 in one of the appeals of the group; wherein similar questions of law similar to the present appeal were raised contending that by the aforesaid order, this Court dismissed the said appeal confirming the order of the Tribunal. 2. The learned counsel for the Appellant seeks to canvass that dismissal of Central Excise Appeal No. 6/2017 would not automatically means that the present appeal does not give rise to any substantial question of law. However, we note that questions of law framed in the present appeal and the Central Excise Appeal No. 6/2017 are the same. If it is the endeavour of the Appellant to distinguish this appeal by presenting reframed questions of law, the same shall be done by the concerned Officer by filing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... within the limitation period as confirmed are upheld along with interest. The same has been summed up in Para 35(i) as under: (i) The confirmation of demand of ineligible Cenvat credit and interest thereof on towers and pre-fabricated buildings within the limitation period are upheld in respect of all the Appellants Since the Show Cause Notice for the demand issue in C.E.X.A. no. 6/2017 was well within time, there was no need whatsoever to frame substantial questions of law on extended period of time mentioned in Para 5 A, B and D since the extended period was not invoked at all. Similarly since the main issue in the appeal with regard to admissibility of CENVAT credit on Towers, prefabricated buildings, shelters, PUF panels etc. was also decided by Tribunal in favour of Revenue, it was not necessary to frame a substantial question of law on the said issue as mentioned at Para 5 (C). The only relevant issue was with regard to the penalties under section 76 and 77 of The Finance Act 1994 read with Rule 15 of Cenvat Credit Rules 2004 which were imposed on the assessee i.e. M/s Reliance Communication under C.E.X.A. no. 6/2017. These penalties were d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In view of what is mentioned herein I say the order dated 2/4/18 in CEXA no. 6 of 17 has no applicability to the facts of this case and cannot be a determining factor in the present appeal. 17. In reply to the said affidavit, the following affidavit dated 6th April, 2022 on behalf of the assessee was filed on 24th June 2022:- I Sanjeev Mehra, Authorised Signatory of the Respondent above named having Corporate Office at D-26, TTC Industrial Area, MIDC Sanpada P.O., Turbhe, Navi Mumbai 400 703 do hereby solemnly affirm and state on oath as under:- 1. I am fully conversant with the facts of the present appeal and am authorized to depose this affidavit on behalf of the Respondent. Nothing contained in the Reply affidavit dated 07 February 2020 filed by the Appellant Revenue shall be deemed to be admitted unless specifically admitted and even if not specifically denied, herein. 2. I say that the present appeal is filed by the Appellant Revenue against the Order No. A/546-558/15/STB dated 16 March 2015 of the Ld. Appellate Tribunal to the extent that the demand for the extended period of limitation and the penalties imposed on the Respondent is dropped. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Order dated 16 March 2015 of the Learned Tribunal involved many Appellant before it including the present Respondent and also the Respondent (Reliance Communications Ltd.) in CEA No. 6 of 2017. Paras 8.1 and 13 of the Order dated 16 March 2016 of the Learned Tribunal suggests that the present Respondent agitated the issue of limitation before the Ld Tribunal. As also, Paras 8.3 and 15 would indicate that even Reliance Communications Ltd had agitated the issue on limitation before the Ld. Tribunal d) After examining submissions of all the Appellants before the Ld. Tribunal, in Paras 30 to 34 gave a categorical finding to hold that issue of limitation in favour of all the Appellants before it. e) In Para 3 of this Hon ble Court s Order dated 02 April 2018, paras 32 to 34 from the Ld. Tribunal s Order have been reproduced and specifically approved in Para 4 of this Hon ble High Court s order. f) Therefore, even assuming that in CEA 6 of 2017 the issue of limitation was not involved, the approval by this Hon ble High Court to the findings of the Ld. Tribunal s order on limitation will be binding on all the parties today. 8. I say that the fact that Reliance Com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orrect. The Ld. Appellate Tribunal while setting aside the demand for extended period, in the impugned order dated 16 March 2015 in Paras 30 and 31 has categorically observed that 1) assesses filed periodical returns disclosing particulars required to be disclosed; 2) it was for the Revenue to call for additional information if they had queries; 3) audits were conducted by the Revenue and it did not find any error; 4) issue is of interpretation. None of the above has been denied by the Appellant Revenue with corroborative evidence. 14. Further, the Ld. Tribunal also relied upon the judgment of this Hon ble Court in Rajkumar Forge Ltd Vs. UOI-2010 (262) ELT 155 (Bom) to set aside the demand for extended. 15. I say that on the same issue the Hon ble Delhi High Court in a subsequent Order has taken a divergent view. By relying upon the judgment of the Hon ble Supreme Court in the case of Commissioner of C. Ex. Ahmedabad Vs. Solid Correct Engineering Works, 2010 (252) ELT 481 (S.C.), the Hon ble Delhi High Court in the case of Vodafone Mobile Services Ltd. Vs CST, Delhi, 2018-TIOL- 2409-HC-DEL-ST has allowed the credit of the tax paid on inpu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... set aside by the Ld. Appellate Tribunal after considering all the facts and arguments raised before it. 21. In aforementioned circumstances, I say and submit that the present Appeal is devoid of merits and should be dismissed. 18. On 1st July 2022, the matter was heard and the arguments were concluded. 19. Mr. Prasad Paranjape, learned counsel for Respondent would submit that the matter is squarely covered by the decision of this Court dated 2nd April 2018 passed in CEXA no. 6 of 2017 and the same order be passed in the present case as well. 20. Learned counsel for the Appellants reiterated what is stated in the affidavit filed on behalf of the Appellant-Revenue and submits that the case at hand is distinguishable from the case of Central Excise Appeal No. 6 of 2017 and therefore the decision of this Court dated 2nd April 2018 cannot be applied to the facts of this case. 21. We have heard Ms. P. S. Cardazo learned standing counsel for the Appellant and Mr. Prasad Paranjape, learned counsel for the Respondents and with their able assistance we have perused the papers and proceedings and considered the rival contentions. 22. We observe that the impugned decis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aside and we do so. 33 As regards the demands which are within the limitation period; on merits the issue is covered against the Appellants, demands in respect of show-cause notices which are within the limitation period are liable to be upheld and the impugned order to the extent are sustainable. The demands within the limitation period as confirmed are upheld along with interest. 34 In our considered view, as the issue was of are interpretative nature i.e., as to eligibility of Cenvat Credit or otherwise on the towers and the building and had to be settled in the hands of the Hon'ble High Court, the Appellants could have entertained a bonafide belief. Hence, all the penalties imposed on all the Appellants herein are set aside by invoking the provisions of Section 80 of the Finance Act, 1994. 4. Upon reading of these paragraphs, we do not find that there is any substantial question of law, which enables us to entertain this Appeal. The matter has been decided in the light of the peculiar facts and circumstances of the present case. For these reasons, we are not inclined to entertain this Appeal. The view taken by the Tribunal cannot be termed as perverse or ..... X X X X Extracts X X X X X X X X Extracts X X X X
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