2015 (11) TMI 248 - AT - Central Excise

Denial of CENVAT Credit - appellant had availed Cenvat credit on invalid documents - Held that - Adjudicating Authority has come to a conclusion that extended period can be invoked by observing that the appellant had not informed the department of availment of Cenvat credit despite being in knowledge that they are not eligible for availment of such Cenvat credit. I find that the Adjudicating Authority s findings are misdirected on the limitation issue, inasmuch the Cenvat credit was availed during the period March to November 2005, and show-cause notice is issued in October 2007, it is almost beyond two years - Appellant had been filing their returns regularly with the authorities and said returns indicated the Cenvat credit availed by them. It is also brought on record that earlier audit of the appellant was conducted by the authorities and audit report was forwarded to the appellant on 28.03.2006 wherein this point was raised and appellant vide their letter dated 28.05.2006 specifically explained the reasons of their availment of Cenvat credit. There was no further correspondence between the assessee and the department on this, and directly a show-cause notice was issued by invoking the extended period. - invocation of the extended period in these circumstances, is incorrect as I find that covering letter vide which monthly returns were filed with the authorities indicated copies of RG23A part I and II as enclosures. In my view, in the facts of this case, the invocation of the extended period for demanding the Cenvat credit as being suppressed is incorrect. - Decided in favour of assessee.

Summary

Issues:
Entitlement for availment of Cenvat credit on invoices raised by an input service distributor, Invocation of the extended period for demanding Cenvat credit.

Entitlement for availment of Cenvat credit on invoices raised by an input service distributor:
The appellant, a job worker of Wipro Ltd., availed Cenvat credit on central Excise duty paid on inputs and input services received for manufacturing final products for Wipro. The dispute arose as the Cenvat credit was availed on invoices raised by Wipro as an input service distributor. The Adjudicating Authority confirmed the demands raised with interest and penalties, which was upheld by the first appellate authority. The appellant argued that as per Rule 7 of CENVAT Credit Rules, 2004, they were entitled to avail the credit without needing to verify which credit was passed on by the input service distributor. The department contended that the credit availed was for services not related to the products manufactured by the appellant. The Tribunal referred to a previous judgment and held that the credit can only be availed if there is a nexus between the job worker and the input service distributor. Ultimately, the Tribunal ruled against the appellant on the merits of the issue.

Invocation of the extended period for demanding Cenvat credit:
Regarding the invocation of the extended period for demanding Cenvat credit, the Adjudicating Authority justified it by stating that the appellant did not inform the department about the ineligibility for availing the credit despite being aware. However, the Tribunal disagreed with this reasoning. The appellant had been regularly filing returns with the authorities, indicating the Cenvat credit availed, and had even explained the reasons for availing the credit in response to an earlier audit report. The Tribunal found that the show-cause notice issued almost two years after the credit availed was beyond a reasonable timeframe. The Tribunal concluded that invoking the extended period in this case was incorrect, and hence, set aside the impugned order, allowing the appeal on the limitation point.

In summary, the Tribunal addressed the issues of entitlement for availing Cenvat credit on invoices raised by an input service distributor and the invocation of the extended period for demanding the credit. While ruling against the appellant on the entitlement issue due to lack of nexus, the Tribunal set aside the impugned order on the limitation point, finding the invocation of the extended period incorrect based on the appellant's regular compliance with filing returns and explanations provided during audits.