2020 (3) TMI 1376 - AT - Central Excise

CENVAT Credit - input services - outdoor catering services - period pertains to 2009 to March, 2011 - non-production of records - appellant is an appeal against the impugned orders only on the ground that as the period pertains to 2009 to March, 2011 and now it is not possible for the appellant to produce those records as those records are not available with the appellant - HELD THAT - Reliance is placed by the ld. Counsel in the decision of RELIANCE INDUSTRIES LTD. VERSUS UNION OF INDIA 2020 (1) TMI 283 - BOMBAY HIGH COURT is not applicable to the facts of this case as in the said case the decision is with regard to adjudication to be done within one year from the amendment in Section 28 of the Customs Act, 1962 w.e.f. 29.03.2018. There is no such amendment in the Central Excise Act. Therefore, the said reliance is not applicable to the facts of the case. Further, in normal course of business, an assessee is required to maintain their record for five years normally, but in case litigation is going on, the litigants are required to keep the records of the said period till litigation ends. In that circumstances, the plea taken by the appellant that the records pertains to more than five years, therefore, they are not able to produce the record. The said contention of the Ld. Counsel is not acceptable. Appeal dismissed - decided against appellant.

Summary

Issues Involved:
1. Cenvat credit on outdoor catering services.
2. Appellant's inability to produce records for the period of 2009 to March 2011.
3. Applicability of the decision in Reliance Industries Ltd. vs. Union of India.
4. Requirement of maintaining records during litigation.

Analysis:

1. Cenvat credit on outdoor catering services:
The appellant contested the impugned orders concerning the allowance of cenvat credit on outdoor catering services. The learned Commissioner (Appeals) directed the appellant to reverse the cenvat credit, prompting the appellant to challenge this decision. The adjudicating authority did not thoroughly examine the issue, leading to the appellant's argument that they cannot produce records dating back to 2009 to March 2011 as those records are no longer available. The appellant highlighted the obligation to maintain records for five years, emphasizing the impracticality of producing records after more than nine years. However, the Tribunal found no merit in the appellant's contention and upheld the impugned orders, resulting in the dismissal of the appeals.

2. Appellant's inability to produce records:
The appellant's primary defense revolved around their inability to produce records for the period under scrutiny, citing the unavailability of records dating back to 2009 to March 2011. Despite the appellant's argument that the records were beyond the five-year maintenance period, the Tribunal rejected this justification. The Tribunal emphasized the general requirement for litigants to retain records for the duration of ongoing litigation, indicating that the appellant's failure to produce records dating back more than five years was not acceptable in this context.

3. Applicability of the decision in Reliance Industries Ltd. vs. Union of India:
The appellant sought support from the decision in Reliance Industries Ltd. vs. Union of India, as decided by the Hon'ble Bombay High Court. However, the Tribunal differentiated the circumstances of the present case from the case cited by the appellant. The Tribunal clarified that the decision in Reliance Industries Ltd. vs. Union of India was specific to adjudication timelines following an amendment in the Customs Act, which did not have a corresponding amendment in the Central Excise Act. Consequently, the Tribunal deemed the reliance on this decision as inapplicable to the facts of the case at hand.

4. Requirement of maintaining records during litigation:
The Tribunal underscored the general expectation for assesses to maintain records for a standard period of five years. However, in cases where litigation is ongoing, the litigants are typically required to retain records for the duration of the legal proceedings. Despite the appellant's argument regarding the age of the records in question, the Tribunal maintained that the obligation to produce records for the relevant period remained valid, ultimately dismissing the appeals filed by the appellants.

In conclusion, the Tribunal's judgment upheld the impugned orders, emphasizing the importance of record-keeping obligations during litigation and dismissing the appellant's challenges regarding the production of records dating back to 2009 to March 2011.