9911796707
TMI Blog2014 (12) TMI 281X X X X Extracts X X X X X X X X Extracts X X X X ..... l on record to show that the appellant pleaded bona fide belief in their correspondence with the department. As regards ST-3 returns, we agree with the learned counsel that the format of return requires only the amount of Cenvat credit availed by the assessee during the period of return and does not require item-wise break up. However, every return was accompanied by a declaration. The assessee has declared inter alia that they have correctly availed credit in accordance with the provisions of the Finance Act, 1994 and rules thereunder. We have already dealt with those rules and have found that the definition of “input” during the material period was plain and simple. Apparently, it was only after consulting the legal provisions that the as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , Pune (Appeal Nos. ST/49/2007 ST/145/2009) [2013 (29) S.T.R. 401 (Tribunal)]. The learned counsel for the appellant also has perused the conclusions recorded in the said Final Order and he agrees that the decision on the above substantive question on merits is against the appellant. It is in this circumstance at the focus of the debate before us has shifted to limitation. 3. The learned counsel for the appellant submits that the entire demand is beyond the normal period of limitation inasmuch as the relevant show cause notice was issued on 6-9-2009 for recovery of the Cenvat credit amount for the period from 10-9-2004 to 30-9-2006. The learned counsel has made the following submissions in his endeavour to establish that the extended p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... belief to the aforesaid effect. (d) In all the periodical ST-3 returns filed by the appellant, amounts of Cenvat credit availed by them were correctly shown. As there was no provision in the format of return for entering further particulars of Cenvat credit, such particulars were not stated. Further, when the department asked for the particulars of the Cenvat credit on towers and parts thereof and prefabricated buildings, such particulars were supplied forthwith. In this scenario, it could not have been alleged in the show cause notice that the appellant suppressed any material fact with intent to avail inadmissible credit. (e) The Andhra Pradesh High Court in the case of Commissioner of C. Ex., Visakhapatnam-II v. Sai Sahmita ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ations and findings contained in the impugned order. 5. After giving careful consideration to the submissions, we have not found any formidable ground in this case to support the plea of bona fide belief raised by the learned counsel on behalf of the assessee. The show cause notice had clearly alleged against them that the factum of having availed Cenvat credit on transmission towers and parts thereof as also on prefabricated buildings was not disclosed in the ST-3 returns or otherwise during the period of dispute. The noticee filed a reply dated 9-9-2009 but, therein, did not raise the plea of bona fide belief in the context of pleading limitation against the demand of duty. In another context, however, they stated that they had held th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... transmission towers were undoubtedly used for providing telecom service, but they were not goods . The prefabricated buildings which housed some telecom equipments were also immovable structures and hence not goods to be eligible for the above benefit. This legal position is clearly discernible from the very definition of input . The appellant claims to have held a bona fide belief to the contra. Such belief is flying in the face of the legal provision and hence cannot be bona fide belief . 6. It is not in dispute that the appellant during the material period did not claim Cenvat credit on cement or other materials used in the installation of the prefabricated buildings. Had they held a bona fide belief of the kind stated by the le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... les thereunder. We have already dealt with those rules and have found that the definition of input during the material period was plain and simple. Apparently, it was only after consulting the legal provisions that the assessee in their returns declared as above. This is another factor which contradicts the plea of bona fide belief. 8. We have also not come across any plea of financial hardships in this case. 9. Having found no prima facie case on merits or on the ground of limitation, we direct the appellant to pre-deposit an amount of ₹ 3,00,00,000/- (Rupees Three crores only) within six weeks and report compliance to the Assistant Registrar on 17-4-2012. Assistant Registrar to report to the Bench on 24-4-2012. Subject to co ..... X X X X Extracts X X X X X X X X Extracts X X X X
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