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TMI Blog2018 (11) TMI 230X X X X Extracts X X X X X X X X Extracts X X X X ..... t has carried out sale of raw materials by selling the same to M/s Cipla Ltd., Mumbai, on whose behalf it also undertakes manufacturing process on job work basis. As per Rule 6 of CENVAT Credit Rules, 2004, if separate account for manufacturing on such trading by way of sale is not maintained, the assessee is liable to pay 6%/7% of the value of exempted goods/services besides payment under sub-rule 3A of Rule 6 of CENVAT Credit Rules, 2004. Appellant was put to notice on the basis of such Audit report which was objected by it but ultimately resulted in imposition of such duty liability including interest and penalty covering extended period on the ground of suppression of facts etc. 3. During the course of hearing of the appeal, Learned Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duty demand for the extended period. He prayed for setting aside of the order of the Commissioner (Appeals). Learned Counsel for the appellant has relied upon the various judgments in his support: (i) CCE & SERVICE TAX, Ghaziabad Vs. Mahaveer Cylinders Ltd. - 2016 (341) ELT 361 (Tri.-All.) (ii) CCE, Ghaziabad Vs. UP Telelinks - 2015 (329) ELT 888 (Tri.-Del.) (iii) A. R. Casting (P) Ltd. Vs. CCE & ST, Chandigarh - 2010 (256) ELT 420 (Tri.-Del.) (iv) Chitrakoot Steel & Power Pvt. Ltd. Vs. CCE, Chennai- 2008 (10) STR 118 (Tri. Chennai) (v) CCE, Chandigarh-I Vs. Punjab Steels - 2011 (21) STR 5 (P & H) (vi) Exide Industries Ltd. Vs. CCE & ST, Raigad - 2018-TIOL-1541- CESTAT-MUM 4. Learned AR for the Department, in response to appell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... other hand "Service" as defined under 65B (44) of the Finance Act, 1994 excludes (ii) such transfer, delivery or supply of any goods which is deemed to be a sale within the meaning of clause (29A) of article 366 of the Constitution. 6. From a bare reading of the definition and provision reproduced above, it is apparently clear that a pure sale, un-associated with delivery of goods and services together, is not to be considered as service. Therefore what is contained in Section 66D of the Finance Act, 1994 dealing with negative list of services concerning trading of goods and the clarificatory circular referred above as well as inclusion of the same in the explanation appended to clause 2(e) of the Cenvat Credit Rules 2004 are mere clarific ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enue audit which covers central excise, service tax and customs laws during which time the assesses were examined by CERA audit party to point out the deficiencies, leakage of revenue and non recoveries of dues by the Central Excise Department. Therefore, it cannot be said that only because audit party had found some credit availed has inadmissible, suppression of fact is made out. 8. In the conclusion, I have got no hesitation to say that respondent has not brought forth any cogent evidence on record to establish the charge of wilful suppression by the appellant company to invoke extended period of service so as to justify penalty. Hence the order. 9. The appeal is allowed and the order passed by the Commissioner (Appeals) in Order-in-Ap ..... X X X X Extracts X X X X X X X X Extracts X X X X
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