2018 (9) TMI 989 - AT - Service Tax

CENVAT credit - Cement and TMT Bar used for construction of wall in their port area - denial on account of nexus with the rendering of the Port Service - Time Limitation. Held that - The guard wall has been built for arresting the sliding cargo from the stands during rainy season. It will help to prevent jamming of dedicated railway tracks installed for movement of loading equipments like stacker-reclaimer. It results smooth dispatches of the imported cargo - The Kolkata Port Trust Haldia Dock Complex, vide letter dated 14/09/2004 and Steel Authority of India Limited, vide letter dated 16/09/2004 addressed to the appellant s, erection of guard wall was found to be imperative and accordingly, the same was constructed for providing smooth and quality service, to the customers. Time limitation - Held that - There is no element of fraud, collusion, suppression of facts or misstatement with an intent to evade payment of Service Tax. Since there is no occasion for invocation of extended period of limitation - The Show Cause Notice issued on 08/04/2008 seeking to recover Cenvat Credit availed during March, 2005 and April, 2005 is barred by limitation and is hereby set aside. The appellant is allowed on the ground of limitation.

Summary

Issues involved:
1. Irregular availment of Cenvat Credit for construction materials.
2. Demand confirmation by Adjudicating Authority with penalty.
3. Upholding of demand by Lower Appellate Authority.
4. Connection of guard/retention wall construction with port services.
5. Arguments of both parties before the Tribunal.
6. Observations and analysis by the Tribunal.
7. Barred limitation for Show Cause Notice issuance.

Analysis:

1. The case involved the irregular availment of Cenvat Credit for Cement and TMT Bar used in constructing a wall in the port area. The Adjudicating Authority confirmed a demand of ?8,51,380 along with interest and imposed a penalty under relevant sections.

2. The Lower Appellate Authority upheld the original order and dismissed the appeal, leading to the appellant approaching the Tribunal for redressal.

3. The appellant argued that the construction of the guard/retention wall was essential for providing port services, preventing the sliding of cargo on rail tracks during the rainy season, and ensuring smooth operations for service users like SAIL and HDC, KoPT.

4. The Tribunal observed that the guard wall was specially constructed to prevent the sliding of cargo during rainy seasons, as confirmed by letters from Kolkata Port Trust and Steel Authority of India Limited, emphasizing the importance of the wall for smooth operations and dispatches.

5. The arguments of both parties were heard by the Tribunal, with the appellant emphasizing the necessity and direct connection of the guard wall construction with the provision of port services, while the Revenue reiterated the decisions of the Lower Authorities.

6. Upon analysis, the Tribunal found that the construction of the guard/retention wall was integral to preventing disruptions in port activities and ensuring the quality of services provided, as evidenced by official correspondence and the specific purpose served by the wall.

7. Finally, the Tribunal ruled that the Show Cause Notice issued after the normal time limit was barred by limitation, as there was no evidence of fraud, collusion, or intent to evade payment of Service Tax. Therefore, the impugned orders were set aside, and the appeal was allowed on the ground of limitation, providing relief to the appellant.