9911796707
TMI Blog2019 (2) TMI 559X X X X Extracts X X X X X X X X Extracts X X X X ..... iod of six months got enhanced to one year vide a subsequent Notification No. 6/2015 dated 01.03.2015. The appellant no doubt has taken the cenvat credit beyond six months but within the one year of the requisite invoices - The benefit of the above discussed confusion has to be extended in favour of the assessee. Denial that the appellant was involved in manufacturing as well as trading activities, as such, was not entitled to take entire credit on the common input/ input services - extended period of limitation - no suppression of facts - Held that:- While issuing the impugned SCN the factum of availing the cenvat credit by the appellant on the common input/ input services was very much in the notice of the Department. It was also in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the proportionate penalty were also proposed. The said SCN was initially adjudicated by Assistant Commissioner who vide Order-in-Original No. 01 dated 26.09.2017 had confirmed the entire proposal of the said SCN. Being aggrieved an Appeal was preferred before Commissioner(Appeals), who vide Order-in-Appeal No. 696-17-18 dated 28.02.2018 has partially allowed the appeal to the extent of reduction of penalty from ₹ 72,91,581/- to ₹ 6,45,790/-. Still being aggrieved the appellant is before this Tribunal. 2. I have heard Mr. Rajesh Rawal, Ld. Advocate on behalf of the appellant and Ms. Tamana Alam, Ld. DR on behalf of the Department. 3. It is submitted on behalf of the appellant that the trading was not exempted service an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 97) E.L.T. 465 (S.C.) Order accordingly is prayed to be set aside. Appeal is prayed to be dismissed. 4. While rebutting these arguments, Ms. Tamana Alam, Ld. DR has impressed upon the findings of Commissioner(Appeals) in para 7 thereof wherein all the grounds as have been taken by the appellant are fully been considered and have been declined. It has specifically been noted by Commissioner(Appeals) that since the impugned irregularities have been noticed during the course of audit only hence merely issuance of spot memo does not alter the nature and gravity of contravention. Case law as relied upon by Ld. DR is Ruchika Global Interlinks Vs. CESTAT, Chennai reported as 2017 (5) G.S.T.L. 225 (Mad.) 5. After hearing both the partie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en relied upon by the department it is apparent that w.e.f. 31.03.2011 trading was very much included as an exempted service. It is the case of the appellant that they were involved in manufacturing as well as trading. Hence it becomes clear that appellant was liable to follow the mandate of Rule 6(3) of CCR, 2004. The decision of this Tribunal in appellant s own case bearing appeal no. E/51665/2017 has also been relied upon. The reversal of the proportionate cenvat credit in respect of use of input services for trading activity has been held as correct. I am of the view that there is no infirmity in the said findings that the appellant was not entitled to take the entire cenvat credit and since the credit was taken the appellant was liable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d including the partial period of the impugned SCN i.e. w.e.f. January 2015 to September 2015. This perusal makes it clear that while issuing the impugned SCN the factum of availing the cenvat credit by the appellant on the common input/ input services was very much in the notice of the Department. It was also in their notice that while taking the said credit invoice of the period prior six months was used by the appellant. In such circumstances, the allegation of suppression of facts on part of the appellant is not at all sustainable, based whereupon, the extended period of limitation has been invoked vide this SCN. Resultantly, I am of the opinion that SCN is barred by time. I draw my support from the decision of Hon ble Apex Court in the ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
