2015 (10) TMI 630 - AT - Service Tax

Denial of CENVAT Credit - reversal of credit in respect of trading of vehicles - extended period of limitation - Held that - The allegation in the show cause notice is that appellant has suppressed the fact that appellant is an authorized dealer of General Motors. Infact the fact has been recorded by this Tribunal in order passed by this Tribunal in appellants own case vide order dated 4.11.11 reported in wherein it has been recorded that appellant is an authorised dealer of vehicle manufactured by M/s. General Motors. This observation has been made by this Tribunal on 4.11.2011 in appeal which has been arisen out of order in original dated 28.12.10 which means that before 2010, it was in the knowledge of department that appellant who is an authorised dealer of M/s. General Motors for selling the vehicle. Therefore, allegation against the appellant that they have suppressed the fact that they are authorized dealer of General Motors is not correct. Admittedly, show cause notice was issued by invoking the extended period of limitation. In these circumstances, show cause notice cannot be issued to the appellant by invoking the extended period of limitation. Therefore, the demand in the impugned order has been confirmed by invoking the extended period of limitation which is not sustainable. Consequently, impugned order is set aside. - Decided in favour of assessee.

Summary

Issues:
1. Denial of Cenvat credit to the appellant due to providing taxable and non-taxable output services.
2. Issuance of show cause notice invoking the extended period of limitation.
3. Contesting the issue of limitation.

Analysis:
1. The appellant appealed against the denial of Cenvat credit, contending that they were not entitled to input service credit as they provided both taxable and non-taxable services without maintaining separate accounts for trading activity. The show cause notice was issued for the period from October 2005 to March 2009, alleging suppression of facts regarding being an authorized dealer of General Motors. Both lower authorities upheld the denial of credit and imposed penalties. The appellant argued that trading activity was not exempted based on precedents like Orion Appliances Ltd. and BHEL-GE Turbine Service Pvt. Ltd. The appellant's counsel emphasized that the extended period of limitation was not applicable due to prior knowledge of the department about the dealership status.

2. The appellant's counsel highlighted letters confirming the appellant's dealership with General Motors and previous Tribunal orders acknowledging the same. The appellant did not contest the issue of limitation, focusing solely on the allegation of suppressing dealership information. The Tribunal observed that the department had prior knowledge of the dealership status before the issuance of the show cause notice. Therefore, invoking the extended period of limitation based on alleged suppression was deemed unsustainable. Consequently, the impugned order denying Cenvat credit and imposing penalties was set aside, and the appeal was allowed with any consequential relief.

3. The Tribunal's decision centered on the unsustainable nature of invoking the extended period of limitation due to the department's prior knowledge of the appellant's dealership status. By establishing that the appellant did not suppress relevant information, the Tribunal overturned the denial of Cenvat credit and penalties, providing relief to the appellant based on legal precedents and factual evidence presented during the proceedings. The judgment emphasized adherence to procedural fairness and the importance of accurate assessment based on available information without penalizing parties for non-suppression of known facts.