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TMI Blog2024 (4) TMI 31X X X X Extracts X X X X X X X X Extracts X X X X ..... une 2017 Duty confirm ed (Rs.) 73,76,990 2,33,38,950 51,85,077 43,30,661 47,77,313 2,98,117 76,74,145 Penalty imposed (Rs.) 73,76,990 2,33,38,950 5,18,508 43,30,661 47,77,313 4,29,811 7,67,414 Order No. & date OIO No. 32/2011 dated 17.12.2011 OIO No. BLR-EXCUS-004C0M-16-2015 dated 22.12.2015 OIO No. BLR- EXCUS-004COM-14-2016-17 dated 02.09.2016 OIA No. 168/2017 dated 20.03.2017 OIA No. 211-212/2019-20 CT dated 12.03.2020 2. Briefly stated the facts of the case are that the appellants are engaged in the manufacture of pistons, rings etc., falling under Chapter 84 of the Central Excise Tariff Act, 1985. They also availed cenvat credit facility under the Cenvat Credit Rules, 2004 (CCR, 2004 for short). During the relevant period, the appellants and their sister concern M/s. Federal Mogul Goetze India Ltd. (FMGL, for short) were functioning within the same premises using common human resources at Yelahanka, Bangalore. Further, their Head Offices situated at New Delhi are also functioning within the same premises sharing common human resources as well. The two units have separate PAN numbers. 3. During the course of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... edural defects, which are curable in nature since they have fulfilled all the conditions prescribed under the CCR, 2004 in availing cenvat credit. In support, they have referred the following decisions:- i) Sambhaji & Ors., Vs. Gangaji & Ors.,-2009-TIOL-79-SC-MISC ii) Commissioner of CGST & CE, Jaipur Vs. M/s Genus Power Infrastructure Ltd.,-2020-TIOL-379-CESTAT-DEL iii) EUPC-Welspun Coatings (India) Ltd Vs. CCE, Vadodara-2009(19) STR 478 (Tri-Ahmd) iv) Rapicut Carbides Ltd Vs. CCE & ST, Surat-2015 (317) ELT 312 (Tri-Ahmd) v) CCE, Salem Vs. M/s Krishna Smelters-2011-TIOL-782-CESTAT-Madras 4.2. Further they have submitted that the irregularity, if any, in the documents/invoices in the present case are a mere procedural lapse as there has been no wrong availment of credit, since the services have been used and accordingly service tax paid on those services by the service provider was availed as cenvat credit by the appellant. They have argued that once it is accepted by the Department that the service tax applicable on the services has been paid by the service provider and accepted, the Department cannot deny the credit availed by the service recipient, when the payment of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... od of limitation in the show-cause notices dated 07.02.2011 and 26.03.2014 also cannot be sustained. 4.6. Further they have submitted that they have availed the cenvat credit on bona fide interpretation of the law; hence imposition of penalty is also unsustainable. 5. Learned Authorised Representative (AR) for the Revenue reiterated the findings of the learned Commissioner and Commissioner (Appeals). 6. Heard both sides and perused records. 7. The issues involved in the present appeals are whether: (i) appellants are eligible to avail cenvat credit on input services viz. 'management fee' and 'common sharing of Head office services'; (ii) the documents on which credit is availed by the appellant are in order and (iii) show-cause notices dated 07.02.2011 and 26.03.2014 are hit by limitation. 8. The admissibility of cenvat credit on management fee and HO common sharing expenses as an 'input service' defined under Rule 2(l) of the CCR is no more res integra and covered by the judgment of this Tribunal in the case of Hindalco Industries Limited Vs. CCE, Kolkata-II [Final Order No.75610/2023 dt. 09/06/2023]. The facts of the said case are more or less similar to the present one. In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the BSNL/Reliance Communication Private Limited for the said amount and the BIL has paid Rs.110/- to BSNL/Reliance Communication Private Limited, which includes the cost as well as Service Tax element, the BIL, in turn, has raised an invoice on the assessees claiming proportionately the costs which they have incurred to BSNL/Reliance. By way of illustration, if Rs.20/- has been passed on to one of the assesses, a sum of Rs.2/- is collected as Service Tax and each of the assesses pays Rs.22/- to BIL, on which Rs.2/- is the Service Tax paid. The assessees have taken CENVAT credit on the said Rs.2/- paid by it as Service Tax to BIL. Therefore, the question would be as to whether the department can dispute the nature of transaction at this juncture, more particularly, when the assessment made on the BIL and the collection of Service Tax on them has not been reopened. 15. From the reasons assigned by the Commissioner (Appeals), we find that the Commissioner (Appeals) has travelled beyond the scope of allegation made in the show cause notices. By giving a different interpretation to the nature of transaction, which, in our considered view, could not have been done by the Appellate Auth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9(2) of CCR, 2004, when the documents have the particulars/details as mentioned therein and the jurisdictional Deputy Commissioner/ Assistant Commissioner is satisfied that the goods covered by the document have been received and accounted for in the books of the account of the receiver, he may allow the Cenvat credit. We find that the appellant has being availing cenvat credit and filing periodical returns indicating such availment. Further, this situation is covered by catena of decisions of this Tribunal, Hon'ble High Courts. Hence, we find that the availment of cenvat credit is in order. 12. Further, we find that the appellant has been filing the ER-1 returns, hence there is no suppression of facts by the appellant, therefore invocation of extended period is not tenable and imposition of penalties under section 11AC of Central Excise Act, 1994 read with Rule 15 of CCR, 2004 are not sustainable. 13. In the facts and circumstances of the case and in view of the above discussion, we find that the impugned orders confirming the demand of cenvat credit along with the interest and imposition of penalties are not sustainable and need to be set aside. 14. In the result, the appeals ..... X X X X Extracts X X X X X X X X Extracts X X X X
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