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TMI Blog2024 (4) TMI 1200X X X X Extracts X X X X X X X X Extracts X X X X ..... d, short paid, not levied, short levied or erroneously refunded by a reason of fraud or collusion or willful mis-statement or suppression of facts or violation of Act or Rules with an intent to evade payment of duty. The dispute in this case pertains to Cenvat credit in the CCR, 2004. Rule 14 of CCR provides for recovery of Cenvat credit wrongly taken or erroneously refunded. The provisions of section 11A and section 11AA of the CEA have been made applicable mutadis-mutandis for such recoveries. In other words, no separate procedure or limitation has been prescribed under Rule 14 and the limitations and procedure under section 11A applied to recoveries under Rule 14 of CCR also. If extended period of limitation can be invoked merely because the assessee is operating under selfassessment, then it should be invokable in every case because all assessees operate under self-assessment. The provision of normal period of limitation will be rendered otiose. The grounds for invoking extended period of limitation under section 11A will also become redundant if the officer is free to invoke extended period of limitation on the basis of his opinion regardless of the fact that none of the five ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2020 filed by the Revenue with the same prayer. 3. After hearing both sides, we find that the miscellaneous applications became necessary in view of the re-organization of the jurisdiction of the Commissionerates. Accordingly, both the miscellaneous applications filed by the Revenue are allowed. 4. The appellant filed Excise Appeal No. 51930 of 2019 to assail the order-in-appeal dated 30.04.2019 passed by the Commissioner (Appeals), Central Excise CGST, Jaipur [First Impugned order] . The appellant filed Excise Appeal No. 50688 of 2020 to assail the order-in-appeal dated 31.12.2019 passed by the Commissioner (Appeals), Central Excise CGST, Jaipur [Second Impugned order] . In both the impugned orders the Commissioner (Appeals) upheld the orders-in-original passed by the Adjudicating Authority and rejected the appeals filed by the appellant. Hence these appeals. 5. The appellant is registered with the Central Excise Department for manufacture of parts and accessories of motor vehicles filing under Excise Tariff Item [ETI] 87082100. It is also registered with the department under service tax. The appellant avails Cenvat credit on the inputs/input services and pays central excise duty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rmined in the same manner as determined under rule 5. Explanation 3. -For the purposes of this rule, the relevant period shall be, - (a) If the assessee has turnover in the financial year preceding to the year during which credit is to be distributed for month or quarter, as the case may be, the said financial year; or (b) If the assessee does not have turnover for some or all the units in the preceding financial year, the last quarter for which details of turnover of all the units are available, previous to the month or quarter for which credit is to be distributed . 6. This rule was further amended w.e.f. 01.04.2016, and the amended rule reads as follows :- RULE 7. Manner of distribution of credit by input service distributor. The input service distributor shall distribute the CENVAT credit in respect of the service tax paid on the input service to its manufacturing units or unit providing output service or an outsourced manufacturing units, as defined in Explanation 4, subject to the following conditions, namely : (a) the credit distributed against a document referred to in rule 9 does not exceed the amount of service tax paid thereon; (b) the credit of service tax attributable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... over in the financial year preceding to the year during which credit is to be distributed for month or quarter, as the case maybe, the said financial year; or; (b) if the assessee does not have turnover for some or all the units in the preceding financial year, the last quarter for which details of turnover of all the units are available, previous to the month or quarter for which credit is to be distributed. Explanation 4. - For the purposes of this rule, outsourced manufacturing unit means a jobworker who is liable to pay duty on the value determined under rule 10A of the Central Excise Valuation (Determination of Price of Excisable Goods) Rules, 2000 on the goods manufactured for the input service distributor or a manufacturer who manufactures goods, for the input service distributor under a contract, bearing the brand name of such input service distributor and is liable to pay duty on the value determined under section 4A of the Excise Act .] 7. After audit, Revenue came to the conclusion that the appellant had wrongly availed Cenvat credit of the service tax paid on services related to repair and maintenance of motor vehicles on the strength of ISD invoices issued by its head ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CR and this rule does not have any restriction regarding the input service whose credit is distributed to qualify as input service with respect to the activities of the registered unit ; (c) The appellant had availed Cenvat credit only on the strength of ISD invoices issued by its head office and ISD invoices are regulated only by Rule 7 ; (d) There is no requirement in the ISD invoices to mention the exact nature of various input services whose credit was being distributed in such invoices. In fact, the ISD accumulates Cenvat credit in respect of all enterprise level common input services in a common pool and further distributes it on pro-rata basis as per the provisions and conditions of Rule 7 ; (e) Extended period of limitation has been wrongly invoked as the appellant had filed all its returns as required and there is no evidence in the fraud or collusion or willful mis-statement or suppression of facts. For the same reason, the penalty under Rule 15 of CCR read with section 11AC also needs to be set aside. 12. Learned authorized representative for the Revenue made the following submissions :- (a) The impugned orders are correct and proper and call for no interference. (b) Its ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ave been made applicable mutadis-mutandis for such recoveries. In other words, no separate procedure or limitation has been prescribed under Rule 14 and the limitations and procedure under section 11A applied to recoveries under Rule 14 of CCR also. 16. The reasons for invoking extended period of limitation indicated in the SCN dated 25.08.2017 is as follows :- 10. From the above, it appears that the assessee has wrongly availed the Cenvat credit amounting to Rs. 60,33,856/- during the period from August 2014 to November 2015 on the strength of invoices issued by M/s Hero Moto Corp Ltd. New Delhi, which is Input Service Distributor (ISD) for repair and maintenance of motor vehicles service, which did not pertain to the assessee. Further, the same have not been used in the manufacture of final product or providing their output services. As such the Cenvat credit amounting to Rs. 60,33,856/- (details of which are given in Annexure A ) have been further utilized for payment of duty by the assessee, Is not allowable/admissible and, therefore, same is recoverable from them along with interest under Rule 14 of the CCR, 2004 read with section 11A (4) and 11AA of the Central Excise Act, 19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to invoke the extended period of limitation. 20. It is not possible to accept the reasoning given by the Additional Commissioner. If extended period of limitation can be invoked merely because the assessee is operating under selfassessment, then it should be invokable in every case because all assessees operate under self-assessment. The provision of normal period of limitation will be rendered otiose. The grounds for invoking extended period of limitation under section 11A will also become redundant if the officer is free to invoke extended period of limitation on the basis of his opinion regardless of the fact that none of the five elements required to invoke extended period of limitation are present. 21. The assessee also cannot be faulted for not disclosing any information which it was not required to disclose under the law. The returns are designed by the Government and not by the appellant. If these returns required only the aggregate amounts of Cenvat credit taken and not invoice-wise break up, the assessee has to provide only such figures. It has no obligation whatsoever to disclose on which invoices it had availed Cenvat credit. Once the returns are filed then it is for t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act, 1944 for the said contravention of law . 24. The Assistant Commissioner recorded in paragraphs 17 and 18 of his order-in-original the reasons for invoking extended period of limitation. The Commissioner (Appeals) did not deal with the question of extended period of limitation in the impugned order. 25. We have considered the assertions in the SCN and the order-in-original regarding invocation of extended period of limitation. The case of the Revenue is that the appellant had availed Cenvat credit, which it was not entitled to and, therefore, it implies that the appellant had an intent to evade payment of duty and, hence, extended period of limitation can be invoked. This is contrary to the provisions of section 11A, discussed above. We find that the department has not been able to establish the presence of any of the five elements required to invoke extended period of limitation. The demand is, therefore, time barred and, hence, needs to be set aside. 26. As we have found that the demands in both the appeals are barred by limitation, we need not go into the merits of the case. Both the appeals are allowed and the impugned orders are set aside with consequential relief to the a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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