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TMI Blog2019 (3) TMI 1183X X X X Extracts X X X X X X X X Extracts X X X X ..... dit to the appellant on hyper technical ground as to the importer s invoices do not indicate the CVD amount which has been passed on, seems to be incorrect more so when co-relation of the documents is possible - credit cannot be denied on this ground. CENVAT Credit - input services rendered by ASIP Pvt Ltd. - Held that:- It is seen from the ledger account that the appellant has been making payment to said service provider on account and as per running bill raised by the service provider along with tax. On the face of such clear cut documentary evidence, the adjudicating authority was in error by not accepting the same, to that extent, the adjudicating authority s orders is not sustainable. Appeal allowed in part. X X X X Extracts X X X X X X X X Extracts X X X X ..... here are two views he would prefer to argue case on limitation. He submits that for the period in dispute, the CENVAT Credit on dumpers and tippers was availed and monthly returns were filed with the authorities. The last date for issuing the show cause notice to the appellant was 25.04.2010 from the relevant date of filing of half yearly returns, while the show cause notice was issued on 28.10.2010. He would submit that during the relevant period in question there were two views possible as to eligibility to avail CENVAT Credit of the excise duty paid on dumpers and tippers, as appellant was under bonafide belief that since dumpers and tippers were used in rendering mining serves, and were used for taxable activity, CENVAT Credit is available. He would submit that the adjudicating authority has rejected this claim of limitation only on the ground that appellant did not indicate in the monthly returns that CENVAT Credit was availed on dumpers and tippers. He would submit that as decided by the Tribunal in the case of Saboo Coatings Ltd., [2014 (36) STR 447 (Tri-Del)], wherein it was held that if there is no column in the returns to show the nature of input services, non disclosure ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... x under the mining services w.e.f. 01.06.2007, fairly submits that they cannot avail CENVAT Credit of any central excise duty paid on capital goods, inputs etc., or service tax paid on input services prior to 01.06.2007 as the services rendered by them are not taxable, fairly submits that the CENVAT Credit availed on the invoices raised by the importer for the period prior to 01.06.2007 is an amount of ₹ 55,85,080/- which they are not entitled to credit and in respect of the services rendered by the service providers is to the tune of ₹ 11,33,442/-. He submits that the entire amount stands deposited during the investigation as they have paid an amount of ₹ 1.58 crores during the pendency of the appeal in the earlier case which was decided in their favour. 4. Learned DR on the other hand submits that the demands raised under the allegation of the availment of the improper credit on dumpers and tippers is correct and the claim of the counsel that it is hit by limitation is not sustainable. He submits that monthly returns which have been filed only indicated availment of CENVAT Credit on the capital goods and did not indicate that the said capital goods were dumpers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arned Chartered Accountant that the monthly returns do not indicate any columns wherein they have to declare that the availment of CENVAT Credit against specific items. In the absence of any such column it is not mandatory on the appellant's part to declare that CENVAT Credit availed on capital goods, inputs and input services in the monthly returns. This ratio flows from order of Tribunal in the case of Saboo Coatings Ltd., (Supra) and we hold that the demands raised on the appellants for the reversal of CENVAT Credit on dumpers and tippers is blatently time barred. We also note that in the case of Ganta Ramanaiah Naidu, the Tribunal has came to a conclusion that appellant therein could have entertained a bonafide belief that they are eligible to avail CENVAT Credit on the dumpers and tippers as they are rendering taxable mining services by using the dumpers and tippers is acceptable, the said reasoning of Tribunal is applicable in full force in the case in hand as we notice that period involved is the same, and we hold that appellant in this case could have entertained bonafide belief that they are eligible for CENVAT Credit on the dumpers and tippers. In view of this, we hold th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ; 55,85,080/- which were in respect of the CENVAT Credit of capital goods received prior to 01.06.2007, when the services rendered by the appellant i.e. mining services were not taxable. To that extant we uphold the demand of ₹ 55,85,080/- and hold that CENVAT Credit of ₹ 63,67,543/- is eligible to appellant on this issue. 9. As regards the CENVAT Credit availed on input services rendered by ASIP Pvt Ltd., we find from the documents enclosed to appeal memoranda i.e. invoice raised by ASIP, the said service provider has issued an invoice which indicates the bill period, agreement date, billing period and as also the service tax registration number, the said bill also indicates the service tax charged, calculated @ 12% of the total value, education cess and secondary and higher education cess. We also note from the documents along with the invoices or the documents which are in the form of ledger account indicate payment to service provider, in the accounts of the appellant. It is seen from the said ledger account that the appellant has been making payment to said service provider on account and as per running bill raised by the service provider along with tax. On the fa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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