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TMI Blog2019 (7) TMI 488X X X X Extracts X X X X X X X X Extracts X X X X ..... ving that the recipient is entitled to the credit of duty paid - In this case the allegation against the assessee was that the semi-finished goods received from their sister concern was over-valued in order to pass on Modvat credit. The Department denied the credit taken at the recipient s end. However, the Hon ble Tribunal held in favour of the assessee and also observed that there was no loss of revenue vide its decision reported as MDS SWITCHGEAR LTD. VERSUS COMMR. OF C. EX., CUS., AURANGABAD [ 2001 (4) TMI 130 - CEGAT, MUMBAI] . Hon ble Supreme Court upheld the judgment of Hon ble Tribunal. Department also in a Circular No. 1014/2 dated 1st February, 2016 has clarified that the Cenvat Credit of CVD paid voluntarily is admissible, as it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce Fabrica (India) Limited, who under the contract dated 30 March, 2008 were providing services for building and bringing into commercial operations services as that of fabrication, installation errection and commissioning services for various plants & machineries. As per the contract, the appellant was to provide certain space and facility to the service provider for commencing and carrying out the work. However, due to certain circumstances, the said space and facility could not be provided within the period prescribed in the agreement as was executed between the two. Resultantly, the aforesaid compensation amounting to ₹ 72,00,000/- was paid by the appellant to the service provider who had otherwise discharged his liability. Howeve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also impressed upon that the assessment cannot be reopened at the end of the buyer of the recipient of the goods/services. Ld. Counsel relied upon the case law in the case of Hindustan Unilever Ltd. v. Commissioner of CGST & CE., Kolkata South reported in 2018 - TIOL - 2490 - CESTAT-Kol. & Thysennkrupp Electrical Steel India Pvt. Ltd. v. CCE & Cus., Nashik reported in 2011 (273) ELT 132 (Tri. - Mumbai). Finally, the show cause notice is alleged to be barred by time, as the Department was not entitled to invoke the extended period of limitation. Order, accordingly, is prayed to be set aside. 5. While rebutting these arguments, it is submitted on behalf of the Department that the compensation is an amount which is not the part of the contr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the case of CCE, Delhi-II vs. Welspring Universal reported in 2018 (359) ELT 635 has decided the issue of admissibility of Cenvat Credit once the duty/tax has been paid by the supplier of the goods/the service provider in favour of the assessee. We have no reason to differ from the afore discussed settled proposition of law. Accordingly, we hold that the Cenvat Credit cannot be denied once the duty stands paid. We are further also of the opinion that the assessment cannot be re-opened at the end of the recipient of the goods / services. Compensation herein is otherwise opined to be as good as the escalated price in the supplementary invoice. 8. We draw our support from the decision of Mumbai Tribunal in the case of Thyssenkrupp Electr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... servations, the appeals are allowed with consequential relief, if any, by setting aside the impugned order." 9. In view of the above discussion, we are of the opinion that there is no apparent mensrea on the part of the appellant to evade any duty rather the fact remains is that the duty stands already paid. The Cenvat Credit thereof cannot be disallowed. In such circumstances, the show cause notice should not have been issued or if issued, it should have been within one year of the fact being into notice of the Department. The Department in the present case has invoked the extended period of limitation alleging suppression or misrepresentation on part of the appellant. As already held that there is absence of malafide intent/mensrea, the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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