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TMI Blog2015 (1) TMI 89X X X X Extracts X X X X X X X X Extracts X X X X ..... knew’ that taking the impugned credit of service tax was irregular hardly sustains. Indeed in a scenario where divergent decisions had been delivered by CESTAT, the extended period is held to be non-invokable by Kerala High Court in the case of Binani Zinc Vs. ACCE Cochin - [1994 (10) TMI 74 - HIGH COURT OF KERALA AT ERNAKULAM] and by CESTAT in the case of Laxmi Cement Vs. CCE, Jaipur-I - [2004 (5) TMI 362 - CESTAT, NEW DELHI] Further, in the case of Gopal Zarda Udyog Vs. CCE - 2005-TIOL-123--CEX-LB Supreme Court observed that mere failure or negligence on the part of the manufacturer does not attract the extended period. In the case of CCE Vs. Chemphar Drugs Liniments - [1989 (2) TMI 116 - SUPREME COURT OF INDIA], Supreme Court held that s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eld the appellants guilty of wilful mis-statement/suppression of facts. The appellants have contended that the period involved in this case is September 2004 to January 2008 and the Show Cause Notice was issued on 22.4.2010. They have been submitting their periodical returns regularly giving all the required details therein. In the said returns, the impugned credit was duly reflected. They asserted that there has been no wilful mis-statement or suppression of facts on their part and there were judgements of CESTAT which allowed such credit. It is only after CESTAT judgement in Vandana Global Vs. CCE - -2010-TIOL-624-CESTAT-DEL(LB) that the position acquired a degree of clarity. They argued that the entire demand is barred by time. 3. The l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 04 and the party has, therefore, wilfully suppressed the facts and deliberately contravened the provisions of the Cenvat Credit Rules with intent to evade due service tax by way of availing and utilizing undue Cenvat credit. Similarly the adjudicating authority in para 205 of the adjudication order deals with this allegation as under: From the facts of the present case it is evident that the noticee knew that taking credit of service tax as such, by them was irregular and in contravention of the provisions of Service Tax Rules, 1994 and Cenvat Credit Rules, 204 and the noticee has, therefore, wilfully suppressed the facts and deliberately contravened the provisions of the Cenvat Credit Rules with intent to evade due service tax by way of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al returns relating to, and disclosing the availment of, the impugned credit. 6. There had been divergent judgments regarding the admissibility of impugned credit in the situations similar to the ones obtaining in this case; some holding that the credit is admissible while some others holding otherwise. For example, in the case of Vandana Global Vs. CCE 2008 (230) ELT 169 the Divisional Bench of CESTAT, Delhi prima facie held the view that steel items like angles, joists, beams, channels, bars flats, etc. are used in the construction work; the resultant structures are permanently embedded to the earth which cannot be considered as part of the machinery/equipment and so they do not qualify to be called as goods; as they cannot be treated as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7. Thus it is evident that there were two divergent views even at the level of CESTAT. It was only when the issue was decided in the year 2010 by the Larger Bench of CESTAT in the case of Vandana Global (supra) that the issue received some clarity. As is evident from the present case, the period involved in this case is 2004 to 2008 which is prior to 2010 when the decision of Larger Bench of CESTAT in the case of Vandana Global (supra) was delivered. Thus the observation in the Show Cause Notice that the appellants 'knew' that taking the impugned credit of service tax was irregular hardly sustains. Indeed in a scenario where divergent decisions had been delivered by CESTAT, the extended period is held to be non-invokable by Kerala High Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X
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