9911796707
TMI Blog2016 (5) TMI 135X X X X Extracts X X X X X X X X Extracts X X X X ..... y as per the definition of input service. Therefore the Cenvat Credit on the input service used for auction sale of abandoned cargo and export cargo is not admissible to the appellant. Period of limitation - Demand of Service tax - Auction of sale of abandoned cargo - Held that:- the demand proceeding on the auction of sale of abandoned cargo itself was alarm to the appellant that whether the Cenvat Credit should be availed on the input service used in the auction sale of abandoned cargo. Therefore despite knowing all the facts, the appellant kept on availing Cenvat Credit. As regard details of availment of Cenvat Credit on the nature of input service is not known to the department therefore it cannot be accepted from the department to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eals) Central Excise, Mumbai Zone-II. 2. The fact of the case is that the appellant is engaged in providing the cargo handling services. They have availed Cenvat Credit in respect of certain service which is exclusively used for auction of abandoned goods. The appellant have not discharged the service tax on the auction sale of abandoned goods. They have also availed the Cenvat Credit in respect of Insurance Auxiliary Service which is used for export stuff cargo on which no service tax was paid. The Cenvat Credit was disallowed by the adjudicating authority on the ground that these services were used exclusively for trading activity which is not a taxable service as well as for the export cargo which is again not taxable activity. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the part of the appellant. He submits that the issue involved is an interpretation of law as the department itself was not clear whether the auction sale of abandoned goods are taxable or otherwise. Therefore in this situation, it cannot be said that there is a suppression of fact on the part of the appellant. Hence, the show cause notice for the period beyond 1 year is hit by limitation and demand is not sustainable. In support of his submission on limitation he relied upon the following judgments: (i) Krishna Auto Sales Vs. Commissioner of C.Ex. S.T., Chandigarh-I-2015 (40) S.T.R. 1121 (Tri.Del.) (ii) Commissioner of C. Ex., Belapur Vs. Elder Pharmaceuticals Ltd. - 2015 (37) S.T.R. 241 (Tri.-Mumbai) As regard penalty he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elief of the appellant for wrong availment of the Cenvat Credit. Since the proceeding on the question whether the auction of abandoned cargo is taxable or otherwise was very much in the knowledge of the appellant, the appellant intentionally availed the wrong credit. Secondly, as regard availment of wrong credit the department was never informed that the appellant is availing the credit on inadmissible input service and also for what purpose the service is used. Therefore the department was kept in dark which clearly indicates that there is a suppression of facts on the part of the appellant. 5. I have carefully considered the submissions made by both the sides. I find that the appellant availed the Cenvat Credit in res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Credit. As regard details of availment of Cenvat Credit on the nature of input service is not known to the department therefore it cannot be accepted from the department to issue show cause notice within 1year unless until the facts are unearthed. Therefore, I am of the clear view that there is a suppression of fact on the part of the appellant therefore extended period in the first show cause notice dt. 3.10.2006 was rightly invoked. As regard penalty under Section 78 imposed on the appellant, I am of the view that Section 78 penalty can be imposed only when there is a suppression of fact, fraud, collusion, willful misstatement etc. In the present case, the suppression of fact involved only in the first show cause notice dt. 3.10.2006 ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
