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TMI Blog2018 (9) TMI 127X X X X Extracts X X X X X X X X Extracts X X X X ..... respect of input services in question on the bonafide belief that they are entitled for credit and the said bonafide belief was founded on the basis of various judicial decisions of the High Court and the Tribunal - Further, the entire issue relates to interpretation of statutory provisions particularly the ‘input service’ definition in Rule 2(l) of the Cenvat Credit Rules 2004 - In the present case, the period of dispute is from 2009-10 up to 2011-12 and the show-cause notice was issued on 04.03.2014 which is beyond the normal time period of one year from the relevant date i.e. 10.04.2012 - entire demand is barred by limitation. The appellant is not entitled to the cenvat credit on courier service whereas on limitation he succeeds - th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he place of removal. The subject auto-parts are cleared under MRP Valuation under Section 4A of Central Excise Act 1944 [in short CEA ]. Accordingly, a Show-Cause Notice dt. 04.03.2014, was issued demanding recovery of the inadmissible credit of ₹ 42,26,553/- (Rupees Forty Two Lakhs Twenty Six Thousand Five Hundred and Fifty Three only) under proviso to Section 11A of CEA, and Rule 14 of CCR, along with interest and penalty under Section 11AC of CEA, and Rule 15(1) of CCR. After due process, the Additional Commissioner, LTU, vide Order-in-Original No. 81/2015 dt. 17.07.2015, confirmed the demand of ₹ 42,26,553/- (Rupees Forty Two Lakhs Twenty Six Thousand Five Hundred and Fifty Three only) along with interest and equivalent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CE, Raipur 2014 (35) S.T.R. 751 (Tri.-Del.) d. Ultratech Cement Ltd. Vs. CCE, Raipur 2014 (35) S.T.R. 641 (Chhattisgarh) He further submitted that insofar as excisable goods falling under Section 4A i.e. RSP valuation, the provisions of Section 4 including the definition of place of removal in Section 4(3)(c) and other definitions in Section 4(3) cannot be made applicable to the provisions of Section 4A of the Act. Further RSP/MRP based valuation is entirely founded on a different legal premise/concept and the principles relating to transaction value mechanism cannot be applied mechanically to Section 4A of the Act. He further submitted that the Commissioner (Appeals) in the impugned order has relied upon the decision of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... invocation of extended period of limitation as there was suppression on the part of the appellant. 5. After considering the submissions of both the parties and perusal of the various decisions relied upon by the appellant, I find that the learned Commissioner (Appeals) has relied upon the decision of the Tribunal in the case of Hero Motocorp Ltd. cited supra wherein the Tribunal has held as under: 11. We find that the Tribunal in the case of M/s. Ultra Cement Ltd. vide its Final Order Nos. 58257-58259, dated 18-11-2013 [2014 (35) S.T.R. 751 (Tri.-Del.)] has considered the said issue of clearance of goods under Section 4A of the final product and has come to the following finding :- 9.7 We, therefore, hold that for the period w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 137/3/06-CX-4, dated 2-2-2006 and had not gone into the question of its correctness. 12. In view of the above declaration of law by the Tribunal, it has to be held that where the final product is being cleared either under specific rate of duty or in terms of the MRP declaration as per Section 4A of the Act, the place of removal would be factory gate. If that be so the Cenvat credit of Service Tax paid on the courier services from and/or (sic) up to the factory gate would not be available to the appellant. Since the Division Bench of the Tribunal has held that in case of MRP clearance of the product as per Section 4A of the Central Excise Act, place of removal would be the factory gate and the credit of service tax paid on cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 12 and the show-cause notice was issued on 04.03.2014 which is beyond the normal time period of one year from the relevant date i.e. 10.04.2012. Therefore, by relying upon the ratio of the Hero Motocorp (supra), I am of the considered view that the entire demand is barred by limitation and the Department cannot allege malafide against the appellant particularly when the issue was not free from doubt and relates to one of statutory interpretation. Further I find that the Hon ble Supreme Court in the case of SNS (Minerals) Ltd. Vs. UOI 2007 (210) ELT 3 (SC) has held that if there was a bonafide doubt then the extended period of limitation is not applicable. Further the Department has not been able to bring on record any material which shows ..... X X X X Extracts X X X X X X X X Extracts X X X X
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