9911796707
TMI Blog2019 (2) TMI 1562X X X X Extracts X X X X X X X X Extracts X X X X ..... ted Usages Charges is upto May, 2007 and in respect of demand of service tax on account of error of accounting the period involved is April, 2007 to September, 2007 and the show cause notice was issued on 20.10.2008 by extending the larger period. In view of precedent decision of this Tribunal under similar circumstances extended period of limitation is not invokable - appeal allowed - decided in favor of appellant. - APPEAL No. ST/267/2010-CU[DB] - ST/A/70059/2019-CU[DB] - Dated:- 26-12-2018 - Mr. Ashok Jindal, Member (Judicial) And Mr. Anil G. Shakkarwar, Member (Technical) Shri B.L. Narasimhan (Advocate) Shri Utkarsh Malviya (Advocate) for Appellant Shri Pradeep Kumar Dubey (Superintended) AR for Respondent ORDER ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ption and inventory of input and input services meant for use in provision of taxable and other services which was related to Interconnect Usage Charges which was not taxable to service tax and, therefore, in view of provision of Rule 6(3)(c) of Cenvat Credit Rules, 2004 appellant were eligible to pay service tax payable on output service only to the extent of 20% through Cenvat Credit availed. Therefore, proceedings were initiated for recovery of such Cenvat Credit which in the opinion of Revenue was not admissible for utilization in excess of said 20% of service tax payable which resulted into passing of impugned order. Through impugned order the Original Authority has confirmed the demand of Service Tax of ₹ 7,83,92,438/- and appro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the appellant. Therefore, all the information was available with the Revenue and, therefore, Revenue did not have authority to extend normal period of limitation beyond one year for issue of impugned show cause notice which was issued on 20.10.2008 for the period upto May, 2007. He has further relied on the decision of this Tribunal in the case of Idea Cellular Ltd. vs. Commissioner of Central Excise, Rohtak reported at 2009 (16) S.T.R. 712 (Tri.- Del.). He further submitted that this Tribunal has held in the said case that extended period of limitation in respect of services provided and collection of Interconnect Usage Charges were within the knowledge of Department in view of Letter No.199/2/2004-CX-4 dated 15.06.2004 issued by CBEC t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... involved is April, 2007 to September, 2007 and the show cause notice was issued on 20.10.2008 by extending the larger period. We also note that this Tribunal in the said case of Idea Cellular Ltd. (supra) has held in Para 5 and 5.1 as follows:- 5. Another plea of the Appellant is that longer limitation period of five years under proviso to Section 73(1) for recovery of excess utilized credit and penal provision of Rule 15(4) of Cnevat Credit Rules, 2004 read with Section 78 of the Finance Act, 1994 have been wrongly invoked as there is absolutely no willful misstatement, fraud or suppression of facts etc. with intention to evade the service tax. We agree with this plea of the Appellant, in view of the following- (a) In each ST-3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n must be deliberate. In this case neither the circumstances indicate suppression of facts , misstatement, fraud etc. nor any evidence in this regard has been produced. Therefore neither the demand beyond the normal limitation period of one year is sustainable nor penalty under Rule 15(4) of Cenvat Credit Rules, 2004 read with Section 78 of the Finance Act, 1994 is attracted. In view of precedent decision of this Tribunal under similar circumstances extended period of limitation is not invokable. We, therefore, hold that since the show cause notice is issued by invoking extended period of limitation the impugned order is not sustainable. 6. We, therefore, set aside the impugned order and allow the appeal. (Pronounced in Court) ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
