2018 (2) TMI 999 - AT - Central Excise

CENVAT credit - input services - Real Estate Service - Commercial Construction Service - change of opinion - extended period of limitation - Held that - the transactions under dispute are properly recorded in the books of accounts ordinarily maintained in the normal course of business - also, the said transactions were already subjected to previous audit which was done prior to May, 2013. It is evident on the face of record, that it is only after the subsequent audit that the SCN were issued by way of change of opinion. The SCN for the extended period of limitation is not maintainable - appeal allowed - decided in favor of appellant.

Summary

Issues:
1. Admissibility of Cenvat credit on Real Estate Service
2. Admissibility of Cenvat credit on Commercial Construction Service
3. Validity of show cause notice invoking extended period of limitation

Admissibility of Cenvat credit on Real Estate Service:
The appellant claimed Cenvat credit of ?1,79,220 on Real Estate Service received via a bill dated 12th February, 2008. The issue was whether this credit was rightly taken. The Tribunal found that the transactions in question were properly recorded in the appellant's books of accounts, which were maintained in the normal course of business. It was noted that the disputed transactions had already been considered in a previous audit conducted before May 2013. The Tribunal concluded that the show cause notice invoking the extended period of limitation was not maintainable. Consequently, the appeal was allowed, and the impugned order was set aside, granting the appellant consequential benefits.

Admissibility of Cenvat credit on Commercial Construction Service:
Another issue was the admissibility of Cenvat credit of ?64,002 on Commercial Construction Service received up to March 2011 for the construction of Unit-II. The Tribunal's analysis considered the same facts and circumstances as in the Real Estate Service issue. It was established that the disputed transactions were already reviewed in a previous audit conducted before May 2013. The Tribunal held that the subsequent show cause notices issued based on a change of opinion post the subsequent audit were not valid. Consequently, the appellant was deemed entitled to the Cenvat credit, and the impugned order was set aside, allowing for consequential benefits in accordance with the law.

Validity of show cause notice invoking extended period of limitation:
The show cause notice dated 28/04/2014 invoked the extended period of limitation, alleging that the facts regarding the Cenvat credit came to light during an audit conducted for the period May 2013 to May 2014. The Tribunal's scrutiny revealed that the disputed transactions had already been part of an earlier audit conducted up to April 2013. It was observed that the subsequent audit merely led to a change in opinion, prompting the issuance of show cause notices. The Tribunal held that the extended period notice was not maintainable, ultimately allowing the appeal and setting aside the impugned order.