2017 (12) TMI 1490

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..... wed.
Shri S.S Garg, Judicial Member Shri J.N. Somaiya, Advocate - For the Appellant Shri Naveen Kushalappa, Dy. - For the Respondent ORDER Per: SS GARG The present appeal is directed against the impugned order dt. 20/03/2017 passed by the Commissioner(Appeals) whereby the Commissioner(Appeals) has partly allowed the appeal of the appellant and dropped the penalty. 2. Briefly the facts of the resent case are that the appellants are manufacturers of sugar, molasses etc. and are availing the benefit of cenvat credit on inputs, input services and capital goods. During the course of audit of the records of the appellant factory, it was noticed that the appellants have availed cenvat credit of service tax paid on canteen construction and .....

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..... mitted that the impugned order is contradictory. He also submitted that the services in dispute relate to construction of canteen building, water tank to store water and construction of room for the factory for repair and maintenance of the existing machinery and all the said services are received prior to 01/04/2011 when the definition of input service was covering the services in the course of business as well as services in relation to setting up, modernization, renovation or repair of the factory or a office. He further submitted that out of the disallowed credit, the credit of ₹ 78,025/- is availed for construction /electrical work of canteen on the basis of invoice No.265 dt 08/02/201 1 of M/S. Sri Durga Construction and the cre .....

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..... sustainable in law. He further submitted that the Commissioner(Appeals) has set aside the penalty in the absence of malafide intention. Therefore the entire demand is barred by time. In support of his submission, he relied upon the following decisions:- i. R.N. Sing Vs. CCE [2012(28) STR 13] ii. Indian Petrochemicals Corpn. Ltd. Vs. CCE [2009(237) ELT 317] iii. CCE Vs. Harish Industries ltd. [2009(223) ELT 651] iv. Vulcan Industrial Engg. Co. Pvt. Ltd. Vs. CCE [2006(194) ELT 331] 4.3. He also submitted that both the authorities have admitted that the availment of credit has been shown in the records maintained by the appellant as well as the returns filed by them and it was detected only during audit He further submitted that once the .....

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