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2018 (5) TMI 1619 - AT - Service TaxCENVAT credit - tippers - extended period of limitation - Section 73(1) of the Finance Act - Held that - As per the provisions of Section 73(1) of the Act, the relevant date for issuing the SCN is one year from the date when the ST3 return is filed or ought to have been filed and in the present case, the return was filed on 10/09/2009. Therefore, the SCN should have been issued on or before 10/09/2010 whereas the SCN was issued on 13/08/2011 much after the normal period by invoking the larger period. The appellant failed to bring any material to show that there was suppression on the part of the appellant to evade the payment of tax. The assessee filed the return on 10/09/2009 giving complete details of CENVAT credit availed by them on tippers and it was not alleged by the department that the respondent had not given such details or given incorrect details in their ST3 return filed on 10/09/2009 or had availed credit fraudulently or without receiving the subject capital goods. In the case of P. V. Narayana Reddy 2008 (10) TMI 178 - CESTAT, BANGALORE , it has been held that demand raised invoking extended period when returns are regularly filed is not sustainable. Appeal dismissed - decided against Revenue.
Issues:
1. Time-barred demand of CENVAT credit. 2. Invocation of extended period for raising demand. 3. Suppression of material facts by the assessee. Analysis: Issue 1: Time-barred demand of CENVAT credit The appeal was filed by the Revenue against the order passed by the Commissioner(Appeals) setting aside the Order-in-Original and allowing the appeal of the assessee. The case involved the assessee availing ineligible CENVAT credit on tippers, leading to a demand of ?33,18,029. The Revenue contended that the demand was not time-barred, invoking the extended period under the proviso to Section 73(1) of the Finance Act. However, the Commissioner(Appeals) held that the demand was time-barred, as the show-cause notice was issued beyond the normal one-year period from the filing of the ST3 return by the assessee. The Tribunal found that the show-cause notice was issued after the normal period, invoking the larger period, and the appellant failed to prove any suppression on the part of the assessee to evade tax payment. The Tribunal agreed with the Commissioner(Appeals) that the demand was indeed time-barred under Section 73(1) of the Act. Issue 2: Invocation of extended period for raising demand The Revenue argued that the extended period should apply due to the alleged suppression of material facts by the assessee. They relied on various decisions to support their stance. However, the Tribunal found that the assessee had filed the ST3 return with complete details of the CENVAT credit availed on tippers, and the Department issued the show-cause notice based on this information. The Tribunal noted that there was no evidence of deliberate withholding of information by the assessee to invoke the extended period. Referring to legal precedents, the Tribunal emphasized that the extended period of 5 years is applicable only when positive actions beyond mere inaction or failure are proven. As the assessee regularly filed returns and provided necessary details, the Tribunal upheld the Commissioner(Appeals)'s decision that the extended period was not justified in this case. Issue 3: Suppression of material facts by the assessee The Revenue alleged that the assessee suppressed material facts regarding the CENVAT credit on tippers. However, the Tribunal found that the assessee had disclosed all relevant details in the ST3 return and subsequent submissions, enabling the Department to issue the show-cause notice. The Tribunal observed that there was no evidence of deliberate withholding or incorrect information provided by the assessee. Relying on legal precedents, the Tribunal concluded that there was no suppression on the part of the assessee to evade tax payment. Therefore, the Tribunal dismissed the appeal of the Revenue, upholding the decision of the Commissioner(Appeals) that the demand was time-barred and there was no infirmity in the impugned order.
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