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TMI Blog2024 (12) TMI 883X X X X Extracts X X X X X X X X Extracts X X X X ..... n- whether the credit has been taken twice against the same supply of goods/services. The matter needs to go back to the Original Authority for verification. Extended period of limitation - penalties - HELD THAT:- The appellant is public sector undertaking. Even if the extended period is invokable for the reason of inadmissible credit taken by the appellant, and penalty imposable on them under section 78. Penalty should have been set aside by invoking the provisions of Section 80 of the Finance Act, 1994. Appeal allowed in part and the matter remanded back to original authority. - HON BLE MR. P. K. CHOUDHARY , MEMBER ( JUDICIAL ) And HON BLE MR. SANJIV SRIVASTAVA , MEMBER ( TECHNICAL ) Shri Kartikeya Narain , Advocate for the Appellant Shri Manish Raj , Authorised Representative for the Respondent ORDER SANJIV SRIVASTAVA : This appeal is directed against Order-in-Original No.36/Commr./Meerut/2014 dated 18/12/2014 passed by Commissioner of Central Excise Service Tax, Meerut. By the impugned order following has been held:- i. I hereby confirm the demand of Cenvat credit of Rs. 3,70,50,506.00 [Rupees Three Crore Seventy Lakh Fifty Thousand Five Hundred and Six only](including Ed.Ces ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2004 read with Section 75 of the Finance Act. 1994: iii. penalty should not be imposed upon them in terms of Rule 15 of Cenvat credit Rules 2004 read with Section 76 and Section 78 of Finance Act. 1994; 2.4 This show cause notice has been adjudicated as per the impugned order referred in para-1 above. Aggrieved appellant have filed this appeal. 3.1 We have heard Shri Kartikeya Narain learned Counsel appearing for the appellant and Shri Manish Raj learned Authorised Representative appearing for the revenue. 3.2 Arguing for the appellant learned Counsel submits that - Demand in respect of following has been confirmed : - Credit taken on the basis of Cover note is Rs.68,41,900/-. Credit taken on the basis of Advise of Transfer is Rs.2,59,76,630/-. Credit taken for reimbursement of fuel expenditure is Rs.42,31,976/- The issue in respect of credit taken on reimbursement expenses have been decided by the Tribunal in their favour vide Final Order No.70610 of 2024 dated 04.06.2024. The issue in respect of credit taken on the basis of Advise of Transfer have been decided by the Tribunal in their favour vide Final Order No.70603 of 2024 dated 30.09.2024 and the matter remanded to original a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ;Advise of Transfer' 2,59,76,630/- Confirmed Reff: Appeal no. ST/50140/2015 order reserved on 07.06.2024 Point No. 4 Credit Taken for reimbursement of fuel expenditure 42,31,976/- Confirmed Reff: Appeal no. ST/70318/2017 allowed on 04.06.2024 Point No. 5 Domestic Roaming 'Output service' for BSNL 1,09,244/- Dropped Total Demand Confirmed 3,70,50,506/- 4.3 We find that the issue in respect of point no.1 and point no.5 has been dropped by the Original Authority himself. Issue at point No.4 was considered by us vide Final Order No.70610 of 2024 dated 04.06.2024, wherein following has been held:- 4.8 On the second issue we are of the view that the adjudicating authority has misdirected himself by treating the issue to be one of admissibility of CENVAT credit on diesel or electricity. The appellant has taken credit on the invoices of the service provider providing AMC services. For providing such services he has used diesel/ electricity as input. The output service provided by the service provider admittedly is AMC service. Not a single word has been stated in the impugned order as to why CENVAT credit should not be allowed on these input services which have been providing i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion, the Cenvat credit was denied in all the cases and penalties were imposed under Rule 15(1) and 15(2) of CCR, 2004. On appeal filed by assessee, the Commissioner (Appeals), in one case that is in the case of BSNL Erode confirmed the demand but set aside the penalty. In the other two cases, the Commissioner (Appeals), completely set aside the impugned order allowing credit based on precedent decision of the Tribunal in Final Order No. 1221/2008, dated 28-10-2008 [2009 (14) S.T.R., 699 (T)]. 4. Arguing for the assessee, the advocate submits that the assessee was having very many secondary switching areas. It was only natural that procurement was done centrally to get competitive bids and also for arranging logistics efficiently. From a commercial point of view, such an operational approach had to be followed and cannot be faulted as a method to take any unauthorized credit. The only procedural lapse was that procuring office did not get registered as dealer as per Rule 9 of Central Excise Rules, 2002 which is made applicable for the purpose of CCR, 2004. However, necessary documentation has been done inasmuch as the all the invoices against which procurements were made are availab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uently there is no question of imposing any penalty. Therefore the appeal filed by the assessee is allowed and the appeals filed by Revenue are rejected. All the appeals are disposed of accordingly. 4.4 This decision was affirmed by Hon ble Madras High Court as reported at [2016 (44) STR J162 (Mad)]. Allahabad bench followed this decision in the case of appellant as reported at [2017 (6) G.S.T.L. 345 (Tri. - All.)] holding as follows: 5. At this stage, the ld. AR for Revenue, points out that the issue relates to taking of Cenvat credit of Rs. 21,93,606/- and the appellants before the authorities below, have shown the documentary evidences only in part and thus there remained discrepancy to be explained. 6. From the above, it is clear that the re-conciliation is not done before the Court below. Accordingly, I allow the appeal by way of remand setting aside the penalties and direct the adjudicating authority to pass a fresh order by following the decision of this Tribunal in the case of M/s. B.S.N.L. v. CCE : 2014 (34) S.T.R. 378 (Tri.-Chennai) (cited supra). I further direct the appellant to appear before the adjudicating authority within a period of 60 days from the date of receipt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been left open for decision of the adjudicating authority while deciding question No. 1 afresh. 17. Accordingly, we allow the appeal in part by modifying the order of the CESTAT dated 8-3-2016 with the direction to the adjudicating authority to decide about the admissibility of the Cenvat Credit available to the assessee in terms of Rule 9 of the Rules after due verification of the documents produced before it and to pass a penalty order if necessary in accordance with law. 4.6 In para 43c of impugned order, specific finding to the effect that appellant had not produced the supporting documents which would evidence payment of duty. In view of the decision of Hon ble High Court of Allahabad on the same issue in the case of Appellant s unit, we remand matter back on this issue to the original authority to re- determine the admissibility of CENVAT Credit on the strength of ATD in terms of this decision of Hon ble High Court. 4.5 As the matter on this issue was remanded back, following the decision of Hon ble High Court of Allahabad, we remand this matter also back to the Original Authority for verification as directed with regards to admissibility of the Cenvat credit on the strength ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gth of Cover Note dated 28.05.2009 and 07.11.2008 respectively. From perusal of Cover Note dated 28.05.2009 [annexed as Annexure VIII to the written defence reply], it is noticed that it pertains to supply of GSM Network System and Parts thereof as per P.O. dated 07.10.2008 attracting Service / Sales Tax of Rs. 62,91,872.00. Similar is the position of Cover Note dated 07.11.2008 [annexed as Annexure Xll to the written defence reply), which also pertains to supply of GSM Network System and Parts thereof as per P.O. dated 27.11.2007 attracting Service/Sales Tax of Rs. 11.00.056.00. 24. This clearly indicates that above-mentioned Cover Notes relate to supply of goods/ software, and charging Service / Sales Tax without bifurcating under two different tax structures. However, M/s BSNI claimed this amount as Service Tax based on eight Invoices dated 26.03.2009 and one invoice dated 07.01.2009 for supply of software. From perusal of these 8+1 invoices (annexed as Annexure VII and Annexure X to the written defence reply] it came to notice that these pertain to supply of Software wherein M/s Ericson India Pvt. Ltd. has charged Service Tax of Rs. 62,91,872.00 and of Rs. 11,00,056.00 respecti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tax amount of Rs.5.50.028.00 was withheld by M/s BSNL and not paid to the supplier at that time and therefore the same could not be availed. Therefore, an amount of Rs.36.95.964.00 (Rs.31.45.936 Rs.5.50,028) has been deposited by them vide GAR-7 challan no 52403 dated 05.12.2011 (Copy of Challan annexed as Annexure XIII to written defence reply). 28. As evident from the foregoing paras, the demand of Cenvat credit of Rs.62,91,872.00, Rs.5,50,028.00 has already been confirmed, out of above said amount, I hereby appropriate Rs.36,95,964.00 already deposited by M/s BSNL vide e- challan bearing No. 0304395 0512201152403. 4.7 It is submission of the appellant that they were making payment of 50% at the time of receipt of the invoice on which the entire amount of service tax paid was indicated, nothing has been stated as to what was the credit taken against those services whether it was 50% of the amount or the entire amount indicated in the invoice was taken as credit against the cover invoice. Appellant have taken the credit on the basis of cover note again of the entire amount claiming the same to be in respect of the same invoices. The said fact whether there was no duplication of t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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