2019 (6) TMI 1189 - AT - Central Excise

Levy of Excise duty - parts used in repair of old cylinders - appellant were paying the service tax on the same while Revenue entertained a view that the appellant should have paid the excise duty on various parts which were being consumed by them captively in the repair of the Cylinders - Revenue neutrality - HELD THAT - The excise duty payable by the appellant was available as credit to them thus again leading to a Revenue neutral situation. Inasmuch as the appellant in the present case also has paid the service tax which is more or less equivalent to the excise duty required to be paid by them there is no justification for upholding the duty of excise and observe that the service tax paid by them is required to be adjusting towards the excise duty now confirmed against them. Extended period of limitation - HELD THAT - The appellant was paying service tax and was filing ST-3 returns which were not being objected by the Revenue. No case of suppression or misstatement can be made out against the assessee so as to invoke the longer period of limitation. Appeal allowed - decided in favor of appellant.

Issues:
1. Payment of Central Excise duty vs. Service tax on repair activities.
2. Demand raised against the appellant for non-payment of excise duty.
3. Adjustment of service tax paid by the appellant towards excise duty.
4. Invocation of longer period of limitation for raising the demand.

Analysis:

Issue 1: Payment of Central Excise duty vs. Service tax on repair activities
The appellant, engaged in the manufacture of various parts, had been paying Central Excise duty on the parts used until the introduction of a negative list based on the service tax regime. Subsequently, they started paying service tax on repair activities involving old cylinders. The appellant contended that the service tax paid was equivalent to the excise duty, leading to a Revenue neutral situation. The Commissioner observed that excess payment under one Act cannot be adjusted against short/non-payment under another Act.

Issue 2: Demand raised against the appellant for non-payment of excise duty
Based on investigations, the Revenue raised a demand against the appellant for non-payment of excise duty on parts consumed in repairing cylinders. The demand was confirmed by the Original Adjudicating Authority and upheld by the Commissioner (Appeals), leading to the present appeal.

Issue 3: Adjustment of service tax paid by the appellant towards excise duty
The Revenue contended that the appellant should have paid excise duty instead of service tax on repair activities. However, the Tribunal cited cases where non-payment of service tax, when due, could lead to a Revenue neutral situation as the tax paid was available as credit. The Tribunal found no justification for upholding the excise duty demand and directed the adjustment of service tax paid towards the confirmed duty.

Issue 4: Invocation of longer period of limitation for raising the demand
The demand was raised by invoking a longer period of limitation. However, the Tribunal noted that the appellant had been paying service tax, filing returns without objection, and no suppression or misstatement was evident to warrant the longer period. Citing precedents, the Tribunal held the demand as barred by limitation and unsustainable, providing consequential relief to the appellant.

In conclusion, the Tribunal set aside the impugned order, allowing the appeal in favor of the appellant, emphasizing the Revenue neutral situation due to the equivalence of service tax paid and excise duty required, and the inapplicability of the longer period of limitation in the absence of suppression or misstatement.

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