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TMI Blog2019 (1) TMI 168X X X X Extracts X X X X X X X X Extracts X X X X ..... ENVAT Credit Rules and also confirmed the payment of interest under Section 11AB and also imposed equal penalties under Section 11AC of the Central Excise Act by denying the CENVAT credit of service tax paid on Forwarding and Cargo Handling Service and Repair and Maintenance of ETP. Since the issue involved in all the four appeals is identical except in appeal No.E/20023/2018, there is an additional issue of denial of CENVAT credit of repair and maintenance of ETP amounting to Rs. 35,535/-, therefore, all the appeals are taken together for the purpose of discussion and disposal. 2. The details of all the four appeals are given herein below: Appeal No. Period involved SCN Date OIO NO. & Date CENVAT credit disallowed Penalty impos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the invocation of longer period of limitation and imposition of penalty on the ground that there was no suppression of facts with intent to evade payment of duty. Initially, the original authority confirmed the demand of various services but the Commissioner (A) vide the impugned order has only confirmed the demand of irregular CENVAT credit in respect of two services Forwarding and Cargo Handling service and Repair and Maintenance of ETP. 4. Heard both the parties and perused the records. 5. Learned counsel for the appellant submitted that the impugned orders are not sustainable in law as the same has been passed without properly appreciating the facts and the law. He further submitted that the appellants have availed the Forwarding and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ication No.41/2012-ST dated 29.6.2012 and Notification No.41/2007-ST dated 6.10.2007 as amended vide Notification No.3/2008-ST dated 19.2.2008. it is her further submission that the entire issue is revenue neutral as if the appellant had not claimed credit, they will be entitled to refund. For this submission, she relied upon the following decisions: * Jotindra Steel & Tubes Ltd. vs. CCE, Delhi-IV: 2014 (36) STR 672 (Tri.-Del.) * Monarch Catalyst Pvt. LTd. vs. CCE, Thane-I: 2016 (41) STR 904 (Tri.-Mum.) * Cap & Seal (Indore) Pvt. Ltd. vs. CCE & ST: 2018 (15) GSTL 74 (Tri.-Del.) * CCE & Cus. Vadodara vs. Narmada Chematur Pharmaceuticals Ltd.: 2005 (179) ELT 276 (SC) 5.1 With regard to the Repair and Maintenance of ET plant, she ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s a settled law that when the demand is based on audit objection, the extended period is not invokable and also that suppression cannot be alleged when the matter involves interpretation of legal provisions. For this submission, she relied upon the following decisions: * CCE & ST, Tirupathi vs. Sri Sai Sindu Industries: 2017 (49) STR 84 (Tri.-Hyd.) * CCE vs. Dynamic Industries Ltd.: 2014 (307) ELT 15 (Guj.) * Ultratech Cement Ltd. vs. CCE: 2016 (339) ELT 127 (Tri.-Hyd.) * Ispat Industries Ltd. s. CCE: 2006 (199) ELT 509 (Tri.-Mum.) * Cambay Organics Pvt. Ltd. vs. CCE, Vadodara: 2007 (217) ELT 586 (Tri.) 5.2 As far as demand of interest and penalty is concerned, the learned counsel submitted that there was no wrong utilizatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /ICD to the destination Port abroad. She also submitted that in the case of exports, the place of removal is the port of shipment and the CENVAT credit is admissible up to the place of removal as per the definition of input services and the credit of freight and insurance charges beyond the place of removal is not admissible. She also submitted that as far as repair and maintenance of ETP plant is concerned, the appellants have not produced the bills wherein service tax has been charged. She further submitted that it is a settled law that in case of export, the place of removal of goods is the port of shipment as held by the Larger Bench in the case of Honest Bio-vet Pvt. Ltd. vs. CCE: 2014 (310) ELT 526 (Tri.-LB). She also relied upon the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s from the department with an intent to evade payment of duty and they have regularly filed the ER-1 returns disclosing the availment of credit and the demand was raised on the basis of audit objection. In my view the extended period cannot be invoked in such circumstances and therefore, in appeal No.E/20023/2018, the demand is confirmed for the normal period of limitation of one year and the demand for the period June 2009 to May 2013 is barred by limitation. 7.1 Further, with regard to other appeals, the CENVAT credit disallowed is confirmed but the penalty imposed are set aside because for the subsequent period, extended period cannot be invoked and penalty cannot be imposed. As far as denial of CENVAT credit on Repair and Maintenance i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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