2018 (8) TMI 534 - AT - Central Excise

CENVAT Credit - place of removal - services in relation to export of the goods which has taken place from foreign port to the foreign customer s port - denial on the ground that services were beyond the place of removal - Held that - ₹ 5340 was demanded which related to Swacch Bharat Cess paid on the Service Tax. As per the submission of the appellant they have not availed the CENVAT credit as there is no provision for taking the credit. Therefore, as per the appellant, credit was not taken on Swacch Bharat Cess. The same should not have been included in the demand. However, the lower authorities have not given any finding on this. Therefore, this needs to be verified by the adjudicating authority and if the credit is not taken the same should be set aside. Time limitation - it was contended that the appellant have not given the description of the services in ER-1 return - Held that - There is no provision in the law or column in the ST3 return for giving the description of the services. Therefore, merely on that ground suppression cannot be alleged against the appellant - the adjudicating authority has not properly dealt with the issue of limitations - matter needs reconsideration. Appeal allowed by way of remand.

Summary

Issues involved:
1. Admissibility of CENVAT credit for services related to export beyond the place of removal.
2. Validity of show cause notices for extended period and alleged suppression of facts.
3. Inclusion of Swachh Bharat Cess in the demand of CENVAT credit.
4. Verification of limitations regarding the description of services in returns.

Analysis:
1. The appellant availed CENVAT credit for services related to the export of goods beyond the place of removal, which the department contested. Two show cause notices were issued, one for an extended period and the other for a specific period. The adjudicating authority and the Ld. Commissioner upheld the demand, leading to the present appeal.

2. The appellant argued that they paid service tax under reverse charge for services by foreign agencies in the foreign country concerning goods' export. They contended that the show cause notice for the extended period was beyond the normal limitation, and they had declared CENVAT credit in their monthly returns, denying any suppression of facts. An error in including Swachh Bharat Cess in the demand was highlighted by the appellant.

3. The Ld. Counsel for the appellant reiterated the impugned order's findings. The presiding member noted that the Swachh Bharat Cess amount demanded was not availed as credit by the appellant, and it should not have been included in the demand. The issue of limitations regarding the description of services in returns was also addressed, emphasizing that suppression cannot be alleged based solely on this ground. The matter of limitations and the inclusion of Swachh Bharat Cess in the demand were remanded to the adjudicating authority for further review and a fresh order.

4. The judgment upheld the demand for the normal period while remanding the matters related to the extended period and the Swachh Bharat Cess credit for re-evaluation. The presiding member concluded the appeal on the mentioned terms, emphasizing the need for proper verification and consideration of the issues raised during the proceedings.