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TMI Blog2025 (2) TMI 804X X X X Extracts X X X X X X X X Extracts X X X X ..... ST3 returns cannot be held liable for concealment of suppression of facts and therefore the extended period of limitation cannot be invoked. In view thereof it is wrong on the part of the revenue to say that the appellant had wilfully suppressed the material facts from the department with intent to wrongly avail Cenvat credit. As per the provisions of the Finance Act, the liability of the appellant was to file the STRs within the stipulated time disclosing the true facts and it is not the case of the revenue that they had not filed the STRs or had not disclosed the availment of Cenvat Credit. Hence, it is not a case of wilful suppression of material facts. There is no averment in the show cause notice with reference to the factual matrix o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion of the Tribunal in the case of Commissioner of C EX & ST-LTU, Delhi versus Gas Authority of India Ltd [2018 (12) TMI 91 - CESTAT NEW DELHI], to emphasise the plea that merely because the appellant is a public sector undertaking does not mean that mandatory penalty cannot be imposed once the invocation of the extended time limit has been upheld. Since it is already held that extended period of limitation cannot be invoked in the present case in the absence of the ingredients specified under section 73 of the Act, consequently, the penalty also cannot be imposed. Moreover, the facts in the said case are distinguishable from the present one, where the findings were to the effect that the appellant mis-classified the product as Naptha, on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... course of audit of the records of the appellant, it was observed that they had provided construction of residential complex services to its customers and for that they had received services from various contractors under Work Contract Service WCS . The appellant is paying service tax on contract service under Reverse Charge Mechanism RCM through GAR-7 Challan and utilising the above input credit made available to them on the basis of GAR- 7 Challan for discharging the service tax liability under construction of residential complex service, which is admissible as per the services taken by the appellant from the contractors under WCS is an input service but the appellant has made first payment of service tax under WCS GAR-7 Challan in the mo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... acts and figures. He submitted that the entire period in dispute is time barred. 5. In this regard, the submission of the learned AR is that the appellant had not disclosed the wrong availment of Cenvat Credit and the same came to the knowledge of the department only during the course of audit of the records of the assessee as per IAR No. 179/2018-19 dated 20.12 .2018 and if the audit had not been conducted, the said facts would have gone unnoticed by the department. 6. Before adverting to the merits of the matter, I may consider the preliminary issue of invocation of the extended period of limitation under section 73 of the Act as according to the learned Counsel the entire period involved is beyond the normal period of limitation and wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts and it is not the case of the revenue that they had not filed the STRs or had not disclosed the availment of Cenvat Credit. Hence, it is not a case of wilful suppression of material facts. 9. It is a settled principle of law that for invoking the extended period of limitation, the ingredients specified in the provisions as contained in proviso to section 73 (1) needs to be satisfied by the revenue, which I find are absent in the present case. There is no averment in the show cause notice with reference to the factual matrix of the instant case, satisfying the presence of the ingredients of fraud, collusion, wilful misstatement, suppression of facts, or contravention of any of the provisions of this chapter or of the rules made thereunde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he credit, however the error was inadvertent as they were registered only in the month of September 2013 and therefore, the extended period invoked by the department is not justified. The principle enunciated in various decisions is that the proviso to section 73 (1) would be applicable on account of misstatement or suppression of facts only if the same was deliberate and for the purpose of evading payment of duty, Bharat Hotels Ltd. Vs. Commissioner of Central Excise (Adj.) 2018 (12) GSTL 368 (Del.). 12. The learned AR has relied on the decision of the Tribunal in the case of Commissioner of C EX & ST-LTU, Delhi versus Gas Authority of India Ltd 2019(366) ELT 941 , to emphasise the plea that merely because the appellant is a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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