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TMI Blog2014 (9) TMI 383X X X X Extracts X X X X X X X X Extracts X X X X ..... o CENVAT credit in respect of the services provided by independent service provider in respect of Engineering Consultancy, Inspection Services, ROU/ROW Consultancy, which was paid by M/s. GSPL directly ? (ii) Whether the Tribunal committed an error in entertaining the ground of the respondent M/s. GSPL on such question of CENVAT credit in a Rectification Application and whether the Tribunal can be stated to have corrected the error apparent on the face of record?" 2. To be heard with Tax Appeal Nos. 452, 453 and 454 of 2013. 3. We notice that the appellant-Department has in these appeals also raised additional question with respect to the view of the Tribunal regarding not permitting the extended period of lim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed in foregoing paras, pipes were directly an input for the EPC contractors. Pipes are procured and used for providing service of construction of pipeline by the EPC contractors. I further observe that the direct nexus between pipes and the output service of "construction of pipeline or other conduit" provided by EPC contractors, is much stronger than the indirect nexus between pipes and the output service of "Transport of goods through pipeline or other conduit" provided by GSPL, because pipes are first used for construction of pipeline and thereafter pipeline is used for transportation of gas through pipeline. Therefore I hold that pipes were used directly for construction of pipeline and then later on indirectly for transportation of ga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed department that they have taken credit on pipes procured by EPC contractors, and (ii) contravention of Finance Act, 1994 and rules made thereunder with intent to evade payment of duty as they were fully aware that the matter is not free from the doubt and contrary to advice given by PWC, they took credit without obtaining clearance from C.B.E. & C./Department. xxx xxx xxx 84. I find that on part of GSPL showing their fraudulent mindset, suppression of facts from the department and contravention of the Finance Act, 1994, and the rules made thereunder and Notification No. 12/2003-S.T. with an intent to evade payment of Service ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ividual. Considering such circumstances, the Tribunal did not grant extended period to the Department and also deleted the penalty imposed by the Commissioner. 7. We notice that the penalties were sought to be imposed for breach of Sections 76 and 78 of the Finance Act, 1994. Section 76 provides for penalty for failure to pay service tax and provides that any person, liable to pay service tax fails to pay the same, shall pay, in addition to such tax and the interest on that tax, be liable to a penalty which shall not be less than two hundred rupees for every day during which such failure continues or at the rate of two per cent per month, whichever is higher. Sub-section (1) of Section 78 provides for penalty where any service tax has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efore, shall have to be seen in light of such statutory provisions. 11. To begin with, the Commissioner in the order-in-original, in our opinion, did not give any elaborate reasons why he came to the conclusion that there was willful default on the part of the assessee. On the contrary, the Tribunal gave detailed and convincing reasons how there were bona fides on the part of the assessee in claiming the tax credit. The issue itself was complex and by no means free from doubt. The assessee obtained legal opinion, which subject to certain riders provided that the tax credit would be available. However, the assessee approached the C.B.E. & C. for guidance. It may be that the C.B.E. & C. would not give such individual opinion. Neverthele ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e. This was the issue in the case of Commissioner of C.EX., Hyderabad-III v. Prudential Spinners Ltd., reported in 2011 (267) E.L.T. 291 (S.C.) and also in the case of Union of India v. Dharamendra Textile Processors, reported in 2008 (231) E.L.T. 3 as well as in the case of Union of India v. Rajasthan Spinning & Weaving Mills, reported in 2009 (238) E.L.T. 3 (S.C.). In the case of Commissioner of C.Ex., Aurangabad Auto Ltd., reported in 2010 (260) E.L.T. 17 (S.C.), the Supreme Court had disapproved the finding of the Tribunal that since both the assessees were situated in the jurisdiction of the same division, the Revenue must be aware about the transaction and, therefore, penalty could not be imposed. Such are not the facts in the present ..... X X X X Extracts X X X X X X X X Extracts X X X X
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