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TMI Blog2024 (10) TMI 1399X X X X Extracts X X X X X X X X Extracts X X X X ..... HELD THAT:- The show cause notice alleges that BSNL had availed CENVAT credit on tower materials. Neither the show cause notice nor Annexure-A to the show cause notice, except for a bald allegation, substantiate that BSNL had actually availed CENVAT credit on tower materials. Annexure-A to the show cause notice takes into consideration all the CENVAT credit availed on duty paid by BSNL. Annexure-A does not show that BSNL had actually availed CENVAT credit on duty paid for tower materials. The Commissioner completely failed to notice this part of the reply submitted by BSNL and merely proceeded to decide whether credit could have been taken by BSNL on the duty paid for tower materials. The issue as to whether CENVAT Credit could have been av ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rvices as well as on capital goods on the basis of advisory notes which could not be taken into consideration. The show cause notice further alleges that the audit noticed that BSNL had mainly availed CENVAT Credit on towers falling under Chapter 73 of the Central Excise Tariff, which would not be covered under the definition of the capital goods as defined under rule 2(a) of CENVAT Credit Rules, 2004 [the 2004 Credit Rules]. It is for this reason that the show cause notice mentions that BSNL appeared to have wrongly availed credit of Rs. 9,87,74,781/- and as they had suppressed the facts from the department, the extended period of limitation under the proviso to section 73 (i) of the Finance Act, 1994 [the Finance Act] would be invokable. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... limitation could have been invoked in the facts of the present case and after noticing that there was a dispute on the issue which was pending before the Tribunal, held that BSNL being a Central Government Company, cannot be said to have wilfully withheld any facts from the department with an intent to evade payment of duty. Thus, the Commissioner concluded that the extended period of limitation could not have been invoked. 8. It is this order dated 05.04.2018 passed by the Commissioner that has been assailed by the department in this appeal. 9. Shri S.K. Meena, learner authorised representative appearing for the department submitted that the Commissioner committed an error in holding that BSNL was entitled to avail CENVAT Credit on tower ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t BSNL had actually availed CENVAT credit on duty paid for tower materials. The Commissioner completely failed to notice this part of the reply submitted by BSNL and merely proceeded to decide whether credit could have been taken by BSNL on the duty paid for tower materials. 13. The issue as to whether CENVAT Credit could have been availed by BSNL on duty paid for tower materials has now been settled by the Tribunal in M/s GMTD Bharat Sanchar Nigam Limited vs. Commissioner of Central Goods and Service Tax, and Central Excise, Jodhpur [ Service Tax Appeal No. 54034 of 2018 decided on August 08, 2024. ]. The Division Bench of the Tribunal, after taking into consideration various decisions, held that BSNL could avail CENVAT credit on duty paid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion was not disclosed deliberately to escape payment of duty. 31. In Easland Combines, Coimbatore vs. Collector of Central Excise, Coimbatore [9] , the Supreme Court observed that for invoking the extended period of limitation, duty should not have been paid because of fraud, collusion, wilful statement, suppression of fact or contravention of any provision. These ingredients postulate a positive act and, therefore, mere failure to pay duty which is not due to fraud, collusion or wilful misstatement or suppression of facts is not sufficient to attract the extended period of limitation. 32. The aforesaid decisions of the Supreme Court were relied upon by the Supreme Court in Uniworth Textiles Ltd. vs. Commissioner of Central Excise, Raipur1 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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