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TMI Blog2011 (2) TMI 187X X X X Extracts X X X X X X X X Extracts X X X X ..... ow-cause notice regarding non-maintenance of the separate accounts - If no separate account was maintained it was not possible to find out as to how much credit stands availed in respect of the project under consideration - Held that: Cenvat credit accounts were being maintained project-wise and in which case, the question of invocation of rule 6(3)(c) of the Cenvat Credit Rules does not arise - the appeal filed by the revenue is rejected X X X X Extracts X X X X X X X X Extracts X X X X ..... the tune of Rs. 11,80,11,316, proceedings were initiated against them by way of issuance of show-cause notice on 24-10-2008 for denying excess Modvat credit of Rs. 2,05,72,358 so availed by the appellants during the period 2005-06 and 2006-07. In addition, notice also proposed to confirm demand by invoking the provisions of rule 6(3)(c) of Cenvat Credit Rules, 2004, which provide for restriction for utilizing of Cenvat credit to the extent of 20 per cent only, in the event of non-maintenance of separate accounts for inputs and input services used for both exempted and taxable services. 4. The said show-cause notice stands adjudicated by the Commissioner confirming the demand of duty of Rs. 2,05,43,901, along with imposition of penalty of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Services', which is a taxable service. He draws our attention to the Tribunal decision in the case of Larsen & Toubro Ltd. v. CST [2011] 31 STT 12 (Ahd. - CESTAT) wherein an identical dispute was raised before the Tribunal, who held that such services are not liable to tax. As such, submits the learned advocate that though decision on merits is against them, he is referring to above judgment only to support his contention on the limitation point. Clarifying on the above issue, he submits that dispute relates to 2005-06 and 2006-07, whereas the show-cause notice was issued on 24-10-2008. They were paying service tax on the said services and filing due returns. As such, the fact of payment of service tax on the above services, after availing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such, submits the learned DR that the extended period has been rightly invoked by the adjudicating authority. 7. It is a case of peculiar kind. We have noticed that in all the earlier matters, the revenue has strongly contended before us that the activity of laying down pipelines under the contract awarded to the assessee by the Gujarat Government under the Sujalam Sufalam Water Scheme is liable to service tax under the Commercial or Industrial Construction Services. It is only in the present case, we have noticed the reverse stand taken by the Revenue, for the reasons best known to them. All the other assessees similarly situate were not paying any service tax on the identical activities and proceedings were initiated against them by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... objection raised by the audit were duly replied by the appellants by their letter dated 13-3-2007 and thereafter the said objection was dropped, as is seen from the final audit report No. 25/2006-07. As such, when the appellants were admittedly paying the service tax on the services and filing returns, and when the audits were taking place during the relevant period, raising objections and subsequently dropping the same, can any suppression or mis-statement can be attributed to the appellant with mala fide intention so as to invoke the longer period of limitation. Further, the fact that revenue itself was raising show-cause notice against the other similarly situate assessees, demanding service tax on the same activity and when the Board wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er has claimed that they had maintained the separate accounts project wise. Their claim is corroborated by the fact that the amount of Cenvat credit wrongly taken by the service provider and the amount of service tax wrongly paid by the service provider has been mentioned very clearly in the show-cause notice itself. There is no mention in the show-cause notice that the said details were obtained by any other method and due to special efforts of the officers. No other evidence has been adduced in the show-cause notice regarding non-maintenance of the separate accounts. In view of the above facts it cannot be denied that the service provider had maintained project wise accounts." We find no infirmity in the above order of Commissioner. A ..... X X X X Extracts X X X X X X X X Extracts X X X X
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