2013 (8) TMI 125 - AT - Central Excise

Limitation Longer period for issuance of Show Cause Notice cenvat credit - input services - outward transportation - Held that - For invoking longer limitation period under proviso to Section 11A (1) of the Central Excise Act, the department has to prove that the wrong availment of Cenvat credit took place on account of fraud, wilful misdeclaration, misstatement or contravention of the provisions of the Central Excise Act, 1944 or of the rules made thereunder with intent to evade the payment of duty - Interpreting the provisions of proviso to Section 11A, the Apex Court in the case of Continental Foundation Jt. Venture vs. CCE, Chandigarh I 2007 (8) TMI 11 - SUPREME COURT OF INDIA has held that when on account of conflicting judgments on an issue during some period, there was scope for entertaining doubt in respect of the view to be taken, the longer limitation period under proviso to Section 11A (1) would not be applicable - In this case allegation of intention to evade payment of Service tax has not even been made even in the show cause notice and only for this reason, the Jurisdictional Assistant Commissioner, after confirming the Cenvat credit demand, has not imposed penalty under Section 11AC, observing that he does not find default or the intention of the assessee to evade the duty, the proviso to Section 11A (1) would not be invokable Extended period not invokable Decided in favor of Assessee.

Issues Involved:
1. Eligibility for Cenvat credit of service tax paid on GTA service for outward transportation of goods.
2. Interpretation of input service definition under Cenvat Credit Rules, 2004.
3. Time limitation for invoking Cenvat credit demand.
4. Application of proviso to Section 11A (1) of the Central Excise Act.

Analysis:

1. Eligibility for Cenvat Credit:
The appellant, a manufacturer of Corrugated Boxes, contested the denial of Cenvat credit for service tax paid on outward freight for transporting finished goods to the customer's premises. The dispute revolved around whether the sales were on FOR destination basis, as per Board Circular No. 97/8/2007-ST. The appellant argued that even if sales were not FOR destination, they were eligible for credit based on the definition of input service in Rule 2(l) of Cenvat Credit Rules, 2004. Reference was made to judgments by Hon'ble Gujarat High Court and Hon'ble Karnataka High Court supporting their claim. The Commissioner (Appeals) upheld the denial, citing the judgment of Hon'ble Punjab & Haryana High Court in a similar case.

2. Interpretation of Input Service Definition:
The appellant relied on the definition of input service under Cenvat Credit Rules, 2004, to support their claim for Cenvat credit. They argued that the services availed for clearance of goods from the place of removal should be eligible for credit. The appellant referenced judgments by different High Courts to strengthen their position. The Departmental Representative, however, emphasized the criteria set in the Board's Circular and previous Tribunal decisions to counter the appellant's arguments.

3. Time Limitation for Cenvat Credit Demand:
The issue of time limitation arose concerning the Cenvat credit demand for the period from January 2005 to 31/3/07. The appellant contended that conflicting judgments existed on the matter until resolved by subsequent High Court judgments. Citing the Supreme Court's ruling in Continental Foundation Joint Venture case, the appellant argued that the demand was time-barred due to the uncertainty caused by conflicting decisions during the disputed period.

4. Application of Proviso to Section 11A (1):
The judgment focused on the application of the proviso to Section 11A (1) of the Central Excise Act regarding the limitation period for invoking Cenvat credit demand. The Tribunal highlighted the need for deliberate and willful suppression or misstatement for invoking the longer limitation period. Referring to the Apex Court's interpretation, the Tribunal concluded that since there was no deliberate intent to evade duty by the appellant, the longer limitation period under the proviso was not applicable. Consequently, the appeal succeeded on the limitation issue, leading to the setting aside of the impugned order.

In conclusion, the Tribunal allowed the appeal based on the limitation aspect, finding the impugned order unsustainable due to the absence of deliberate suppression or misstatement by the appellant.

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