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2014 (8) TMI 364 - AT - Central ExciseRecovery of CENVAT Credit - Invocation of extended period of limitation - Whether bar of limitation as prescribed under Rule 14 of the Cenvat Credit Rule, 2014 read with Section 11A was not attracted and cenvat credit was recoverable - Difference of opinion - Majority decision - Held that - The show cause notice was issued only on the ground that credit of service tax paid on outward transportation is not admissible in view of definition of the input service. The credit is not being denied on the ground that the freight is not part of assessable value or any reason. The only allegation in the show cause notice is that the appellant has wrongly availed credit which is not admissible and deliberately suppressed the fact with intent to evade payment of duty - Appellants were regularly filing statutory returns and also utilising the same - the allegation of suppression of facts with intent to evade payment of duty is not sustainable hence the demand beyond the normal period is not sustainable - Following decision of ABB Limited vs. CCE&ST, Bangalore 2009 (5) TMI 48 - CESTAT, BANGALORE - Decided in favour of assessee.
Issues Involved:
1. Eligibility for Cenvat credit on service tax paid for courier services used for dispatching final products. 2. Interpretation of "input service" under Rule 2(l) of Cenvat Credit Rules, 2004. 3. Applicability of limitation period for recovery of Cenvat credit. 4. Imposition of penalty under Rule 15 of CCR, 2004 read with Section 11AC of Central Excise Act, 1944. Detailed Analysis: 1. Eligibility for Cenvat Credit on Service Tax Paid for Courier Services: The appellant, engaged in manufacturing automobile parts, availed Cenvat credit on service tax paid for courier services used to dispatch final products to customers. The department contended that such services, being outward freight from the place of removal, do not qualify as "input service" under Rule 2(l) of CCR, 2004. The appellant argued that the definition of "input service" before 1/3/08 included services used for clearance of final products from the place of removal, thus covering courier services. They relied on the Larger Bench decision in ABB Ltd. vs. CCE & ST, Bangalore, which held that outward transportation services are covered under "input service." 2. Interpretation of "Input Service" Under Rule 2(l) of CCR, 2004: The definition of "input service" was amended from 1/3/08, removing the clause "clearance of final products from the place of removal." The appellant reversed the Cenvat credit for the period post-amendment but contested the demand for the period before the amendment. The Tribunal in ABB Ltd. interpreted the pre-amendment definition to include outward transportation of finished goods as "input service." This interpretation was upheld by the Karnataka High Court. 3. Applicability of Limitation Period for Recovery of Cenvat Credit: The Tribunal considered whether the extended limitation period under proviso to Section 11A(1) of the Central Excise Act, 1944, was applicable. The appellant argued that due to conflicting judgments on the eligibility of Cenvat credit for outward transportation, the extended period should not apply. The Tribunal referred to the decision in Ultra Tech Cement Ltd., which extended the benefit of limitation due to conflicting judgments. However, the Member (Technical) disagreed, stating there was no conflict regarding assessments under Section 4A or specific rates of duty. 4. Imposition of Penalty: The Tribunal found no suppression of facts or malafide intent by the appellant, interpreting the issue as one of bona fide legal interpretation. Therefore, the imposition of penalty under Rule 15 of CCR, 2004 read with Section 11AC of Central Excise Act, 1944, was deemed unjustified. Conclusion: The Tribunal concluded that the major part of the demand was barred by limitation, setting aside the demand for the period prior to 1/3/08. However, a portion of the demand falling within the limitation period required recalculation. The penalty imposed was also set aside. The final order reflected a majority decision, resolving the difference of opinion between the judicial and technical members regarding the applicability of the limitation period.
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