TMI Blog2023 (11) TMI 409X X X X Extracts X X X X X X X X Extracts X X X X ..... llants has already been settled by this Tribunal in the assessee-appellant s own case in [ 2018 (1) TMI 201 - CESTAT MUMBAI] , where it was held that relying on the decision of the Tribunal in case of Ultratech Cement Ltd. [ 2016 (12) TMI 381 - CESTAT HYDERABAD] and Hindustan Coca Cola Beverages Pvt. Ltd. [ 2016 (8) TMI 35 - CESTAT HYDERABAD] the appeal is allowed. Invocation of extended period of limitation - suppression of facts or not - HELD THAT:- The department is not only well aware of the fact that the appellants were taking CENVAT credit on outdoor catering service but were also defending their case. Thus, it cannot be accepted that there exists any ground for suppression on this particular aspect. Hon ble Supreme Court, in the case of PUSHPAM PHARMACEUTICALS COMPANY VERSUS COLLECTOR OF C. EX., BOMBAY [ 1995 (3) TMI 100 - SUPREME COURT ] have ruled that when the Revenue authorities were aware of the facts about the assessee s activities, then issuance of show cause notice should be confined to the normal period. The demand of CENVAT Credit of Service Tax paid on outdoor catering service for the normal period alone is sustainable. However, the demand of inte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d with Rule 15(3) ibid. The issue was adjudicated on the basis of appellant s reply letter dated 04.09.2018 to the show-cause notice and the submissions made during the personal hearing on 30.05.2019. Vide Order-in-Original dated 27.06.2019, the original authority confirmed the demand of inadmissible CENVAT Credit under Section 73(2) ibid, read with Section 174 of the CGST Act, 2017, besides ordering for recovery of interest and penalty equal to the amount of tax evaded under Section 78 ibid. The appellants had preferred to file an appeal before the Commissioner (Appeals), Thane, who had rejected the appeal filed by the appellants by upholding the Order-in-Original dated 27.06.2019. Feeling aggrieved with this impugned order, the appellants had filed this appeal before the Tribunal. 3. The learned Advocate appearing for the appellants fairly concedes that the issue of admissibility of CENVAT Credit in respect of outdoor catering service has attained finality in favour of Revenue, in view of the order passed by the Larger Bench of the Tribunal in the case of Wipro Ltd. Vs. CCE, Bangalore-III 2018-TIOL-3256-CESTAT-BANG-LB. However, the learned Advocate submitted that the deman ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issue is no more res integra in view of the decision of the Larger Bench of the Tribunal in the case of Wipro Ltd. (supra), wherein it has been held that the definition of input service has been amended w.e.f. 01.04.2011 providing the exclusion clause, wherein the definition of input service under Rule 2(l) ibid, specifically excludes outdoor catering services . It has been concluded in the said order that the outdoor catering service is not eligible for input service credit post amendment dated 01.04.2011 vide Notification No. 3/2011-CE (NT) dated 01.03.2011. I also find that the Advocate for the appellants fairly concedes that the issue is now settled and the appellants are not eligible for the input credit in respect of Service Tax paid on outdoor catering service. I find that the total demand of inadmissible CENVAT Credit has been arrived at Rs.11,14,751/- in respect of 40 voucher entries covering the period January, 2016 to June, 2017, at para 2 of the Order-in-Original dated 27.06.2019. The original authority has confirmed the demand raised in the SCN dated 03.08.2018 holding that the availment of CENVAT Credit having knowledge that the same is inadmissible, amounts to sup ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of facts. The meaning of the word both in law and even otherwise is well known. In normal understanding it is not different that what is explained in various dictionaries unless of course the context in which it has been used indicates otherwise. A perusal of the proviso indicates that it has been used in company of such strong words as fraud, collusion or wilful default. In fact it is the mildest expression used in the proviso. Yet the surroundings in which it has been used it has to be construed strictly. It does not mean any omission. The act must be deliberate. In taxation, it can have only one meaning that the correct information was not disclosed deliberately to escape from payment of duty. Where facts are known to both the parties the omission by one to do what he might have done and not that he must have done, does not render it suppression. 8.2. Further, in the case of Anand Nishikawa Co. Ltd. Vs. Commissioner of Central Excise, Meerut 2005 (188) ELT 149 (SC), the Hon ble Supreme Court have dealt with the identical situation of time limit of issuance of the show cause notice. The relevant paragraphs in the said judgement are quoted below: 26. In Tata Iron Stee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ailure to declare does not amount to willful suppression. There must be some positive act from the side of the assessee to find willful suppression. Therefore, in view of our findings made herein above that there was no deliberate intention on the part of the appellant not to disclose the correct information or to evade payment of duty, it was not open to the Central Excise Officer to proceed to recover duties in the manner indicated in proviso to Section 11A of the Act. We are, therefore, of the firm opinion that where facts were known to both the parties, as in the instant case, it was not open to the CEGAT to come to a conclusion that the appellant was guilty of suppression of facts . In Densons Pultretaknik v. Collector of Central Excise [2003 (11) SCC 390], this Court held that mere classification under a different sub-heading by the manufacturer cannot be said to be willful misstatement or suppression of facts . This view was also reiterated by this Court in Collector of Central Excise, Baroda v. LMP Precision Engg. Co. Ltd. [2004 (9) SCC 703] 8.3 The above referred judgements, though were delivered in context with Section 11A of the Central Excise Act, 1944, but the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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