2018 (2) TMI 1314 - AT - Central Excise

Time limitation - CENVAT credit - construction services - suppression or mis-statement with a malafide intention on the part of the assessee - Held that - Revenue is not disputing the fact of reflection of the credit in the ER-1 returns filed by the assessee. Admittedly, when the returns are reflecting the credit, this leads to inevitable fact that the credit stands reflected in the Cenvat credit account i.e. RG-23A Part II also. The ld. AR fairly agreed that there is no column in ER-1 return to give the break up of various input services, thus casting no obligation on the part of the assessee to give the details of the input service in which such credit stands availed. Such details would be available in RG 23A Part I & Part II accounts being maintained by the appellant and the Revenue is within it powers and jurisdiction to seek such information as regards the input service, if in doubt. The appellant cannot be held guilty of any mala fide suppression or mis-statement. Demand barred by limitation - appeal allowed - decided in favor of appellant.

Summary

Issues:
- Availment of Cenvat credit on construction services post exclusion from input services definition effective April 2011
- Contention of receipt of services prior to April 2011
- Imposition of penalty and limitation period for demand

Analysis:
1. The appellant, engaged in manufacturing iron ore pellet, sponge iron, and billets, availed Cenvat credit on construction services post their exclusion from input services definition effective April 2011, leading to a demand notice of &8377; 44,84,158.
2. During adjudication, the appellant argued that though the credit was availed post-April 2011, the services were obtained before this date. The demand was also challenged on grounds of limitation.
3. The original adjudicating authority upheld the demand and penalty, which was affirmed by the Commissioner (Appeals) who found the appellant failed to prove receipt of construction services pre-April 2011.
4. The appellant's advocate conceded the lack of documentary evidence to establish pre-April 2011 service receipt but argued against the limitation point, stating the credit was duly reflected in Cenvat credit account and ER-1 returns, indicating no malafide intent.
5. The Revenue contended that the appellant did not specify the credit's relation to construction services in ER-1 returns, emphasizing the appellant's responsibility to follow correct law in self-assessment.
6. The appellate authority rejected the time bar argument, citing the appellant's failure to provide evidence of disclosing details in ER-1 returns or correspondence with the department, concluding suppression of facts and contravention of Cenvat credit Rules.
7. However, the Revenue did not dispute the credit's reflection in ER-1 returns, indicating its presence in the Cenvat credit account. The absence of a specific column in ER-1 for input service details does not imply malafide intent, and the Revenue can request such information from RG 23A Part I & II accounts.
8. Ultimately, the demand was set aside as time-barred, with the appeal allowed due to the lack of evidence supporting suppression of facts or misstatement by the appellant.