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TMI Blog2024 (11) TMI 263X X X X Extracts X X X X X X X X Extracts X X X X ..... credit whereas as per department, the cenvat credit is not admissible as the same was pertaining to capital goods which is not admissible in terms of Rule 4(4) of Cenvat Credit Rules 2004. 2. Shri Dhruvank Parikh, learned Chartered Accountant appearing on behalf of the appellant submits that demand of Rs. 4,12,476/- is pertaining to the extended period and since there is no suppression of fact on the part of the appellant, the demand for the extended period is not sustainable. Without prejudice, he submits that this demand was raised under the category of advertisement agency in the show cause notice whereas while confirming the demand, it was confirmed under "selling of space or time slots for advertisement other than advertisement broadcast by radio or telephone" for the period 01.04.2012 to 30.06.2012, therefore on this ground also, the demand is not sustainable. 2.1 As regard the issue of cenvat credit of Rs. 15,80,877/-, he submits that the appellant have not taken the cenvat credit on capital goods, therefore, the same is not hit by invocation of Rule 4(4) of Cenvat Credit Rules, 2004. As regard the cenvat credit availed on the input services, the credit was denied admitte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the instant case, time period of one year has already elapsed and moreover, the appellants have not claimed the CENVAT credit in the ST-3 Returns. I find that the Tribunal in the case of Origin Learning Solutions Pvt. Ltd. (supra) held that CENVAT credit cannot be denied for the reason that such availment was not reflected in ST-3 Returns. I also find that Tribunal and High Courts have been consistently holding that a substantial rate of eligibility to CENVAT credit cannot be denied on the basis of procedural violations. In the instant case, it is not disputed that the appellants have availed the services; paid the service tax on the same and are in possession of documents indicating such availment. Under the circumstances, I am of the considered opinion that credit cannot be denied only because it has been utilized late. Moreover, I find that the show-cause notice has been issued on the basis of third-party information. I find that though extended period has been invoked, no evidence of suppression, mis-statement, fraud, collusion etc., has been put forth. In the absence of the same, extended period cannot be invoked. I find that the Tribunal in the case of Balaji Machinery (supr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It appears that both the authorities have not examined all the documents which have been filed by the appellant in support of their refund claim. In view of this, I set aside the impugned order and remand the matter back to the original authority to examine the refund claim on the basis of other documents filed by the appellant. Accordingly, both the appeals are allowed by way of remand to the original authority. The original authority will provide adequate opportunity to the appellant to producę all the documents which they may rely in support of their refund. Consequently, both the appeals are allowed by way of remand." In the case of Bharat Petroleum Corporation Limited, the Tribunal Mumbai has held as under: "4. We have carefully considered the submissions made by both sides. We find that the limited issue to be decided by us is whether the appellant can be debarred from availing Cenvat credit in facts of the present case that the credit was not taken immediately at the time of receipt and the same was taken after 4 years. We find that the reason for non-availing the Cenvat credit immediately is due to the confusion regarding the quantum of credit to be availed, which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gly disallowed which is not sustainable, therefore, we hold that the appellant is eligible for cenvat credit of Rs. 15,80,877/- and the same stands adjusted against the service tax demand as accepted by the appellant. 6. As regard the demand of Rs. 4,12,476/-, we find that admittedly the demand was raised under advertising service in the show cause notice whereas the adjudicating authority itself has confirmed the demand under the category of selling of space for advertisement, this demand pertaining to the period prior to 01.07.2012 where the category of service was significantly statutory, therefore, if the demand was proposed under the wrong head, the demand will not sustain under different head as held in catena of judgments as cited by the appellant, therefore, the demand of Rs. 4,12,476/- is set aside only on this ground itself without going into the issue of limitation as raised by the appellant. 7. As regard the issue of penalty, it is the submission that the same should be restricted to 15% i.e. Rs. 4,78,239/-. In this regard, we perused the statutory provisions of Section 78(1) which reads as under: 78. Penalty for failure to pay service tax for reasons of fraud, etc. ..... 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