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TMI Blog2023 (12) TMI 1063X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessment, the department cannot question the Cenvat credit passed on by ABMCPL to the Appellant - By relying on the decision, it is held that the denial of Cenvat credit amounting to Rs. 183,36,81,368/-in this case vide the impugned order is not sustainable. Since the demand of recovery of Cenvat credit is not sustainable, the question of demanding interest and imposing penalty does not arise. Extended period of Limitation - HELD THAT:- The impugned order has confirmed the demand without any conclusive evidence towards any suppression, misstatement, fraud, collusion, etc. with the intent to evade payment of service tax on part of the Appellant. Further, the Appellant being a PSU, there exists a presumption of bona fide and no allegation of suppression of facts with intent to evade payment of tax can be levelled against them without any concrete evidence - It is also observed that the factum of availment of CENVAT credit was duly reflected in the periodical returns filed by the Appellant. Therefore, the demand confirmed vide the impugned O-I-O by invoking the extended period of limitation cannot be sustained - the demands confirmed in the impugned order are liable to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce these are in the nature of reimbursement of capital investment and not towards the provision of any service. The Notice was adjudicated vide the impugned Order-in Excise Original dated 29.11.2021, wherein Cenvat credit amounting to Rs. 183,36,81,368/- proposed in the Notice was disallowed along with demand of interest and imposition of Penalty. Aggrieved against the impugned order, the Appellant has filed the present appeal. 4. In their grounds of appeal, the Appellant submits that in the instant case Cenvat credit has been denied to them on the sole ground that no service has been rendered by the contractors to the Appellant and the amount paid by the Appellant is in the nature of reimbursement of capital investment and not towards the provision of any service. It is a settled proposition of law that Cenvat credit cannot be denied to service recipient when payment of service tax is not disputed by the department at the service provider s end. 5. In this regard, the Appellant placed their reliance on the following rulings: M/s Hindalco Industries Limited vs. Commissioner of Customs, Central Excise Service Tax, Rourkela, 2023 (12) TMI 117 CESTAT KOLKATA, Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... General of Foreign Trade, 2020 (3)TMI 861 Del HC. 8. At Para 4.7.3 of the O-I-O, the Ld. Principal Commissioner relies on the definition of 'service' and observes that the present agreements entail transfer of project facilities at the end of the contract period without any consideration by the Appellant. However, the monthly fixed charges are paid towards cost of investment and is a consideration towards transfer of title in goods or immovable property to the Applicant in a manner other than by way of sale. The aforesaid finding of the Ld. Principal Commissioner reflects the artificial vivisection of the entire contract merely on the basis of mode of working out the consideration for the activities carried out by the contractors. If both the contracts are read in entirety, the only conclusion which emerges is that the Appellant has sought the contractors to develop certain facilities (viz. tankages and water handling), operate, manage and maintain the same over a prescribed duration (15/ 25 years) and then, hand over the possession of the facilities to the Appellant. The dominant nature/essential character in both the contracts is the service element of development ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the periodical returns filed by the Appellant. Therefore, the demand confirmed vide the O-I-O by invoking the extended period of limitation cannot be sustained. 11. Further, the Appellant being a PSU, there exists a presumption of bona fide and no allegation of suppression of facts with intent to evade payment of tax can be levelled against the Appellant in the absence of any concrete evidence. In this regard reliance is placed on the following rulings: Commissioner vs. Markfed Refined Oil Allied Indus, 2009 (7) TMI 1204 PUNJAB HIGH COURT, UP State Sugar Cane Dev. Corpn. Ltd vs. Commr. of C. Ex., Allahabad, 2009 (242) ELT 260 (Tri-Del). 12. In view of the above submissions, the Appellant prayed for setting aside the demands confirmed in the impugned order an merits as well as on the ground of limitation. 13. The Ld. D.R reiterated the findings of the adjudicating authority in the impugned order. 14. Heard both sides and perused the appeal documents. 15. We observe that in the instant case Cenvat credit amounting to Rs. 183,36,81,368/- has been denied to the Appellant on the ground that no service has been rendered by the contractors to the Appe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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