9911796707
TMI Blog2025 (2) TMI 848X X X X Extracts X X X X X X X X Extracts X X X X ..... credit on GTA, short payment of service tax under RCM on GTA and wrong utilization of higher education cess and secondary education cess of duty for payment of central excise duty; and only allowed the appeal in respect of non-reversal of Cenvat Credit under the provisions of Rule 6(3) of the Cenvat Credit Rules, 2004 and in respect of issue of penalty imposed under Section 77 of the Finance Act, 1994. 2. Briefly stated facts of the present case are that the appellant is engaged in the manufacture of motor vehicle parts and iron scrap falling under Tariff Heading 87089900 of Central Excise Tariff Act, 1985; and paying service tax under RCM on Business Auxiliary Services, Transport of Goods by Road Service, Supply of Manpower Agency Service ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s and perused the material on record. 4.1 The learned Consultant for the appellant submits that the impugned order is not sustainable in law and is liable to be set aside as the same has been passed without properly appreciating the facts and the law; and binding judicial precedents. 4.2 He further submits that the entire demand is barred by limitation and the Revenue has not produced any evidence on record to show that there was a suppression of facts with intent to evade payment of duty. He further submits that in order to invoke extended period of limitation, the ingredients of Section 73(1) of the Finance Act have to be proved by the Revenue, but in this case, in the impugned order itself, the Commissioner (Appeals) has only observed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... place of removal' by applying the judgments of the Supreme Court in Emco and Roofit Industries, the decision of the Karnataka High Court in Bharat Fritz Werner, and the Circular dated 08.06.2018 of the Board to determine the admissibility of CENVAT credit on the GTA Service upto the place of removal." 4.4 As regards the allegation of short payment of service tax of Rs.5,173/-, as per the department on reconciliation of accounts of the appellant, it was found that the service tax of Rs.5,173/- was short paid under RCM on GTA service. To counter this allegation, the learned Consultant submits that even if the amount was short paid under RCM and if paid the same amount would have been available as Cenvat Credit to the appellant and situation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gs of the impugned order; and also filed the written submissions and justified the order of the learned Commissioner (Appeals) on each demand. In support of his submissions, he placed reliance on the following decisions: CC & CE, Aurangabad vs. Roofit Industries Ltd - 2015 (319) ELT 221 (SC) CC & CE, Nagpur vs. Ispat Industries Ltd - 2015 (324) ELT 670 (SC) Commr vs. Ultra Tech Cement Ltd - 2018 (9) GSTL 337 (SC) Ultra Tech Cement Ltd vs. Commr - 2018 (13) GSTL J101 (SC) Ultra Tech Cement Ltd vs. CCE, Chandigarh-II - 2019 (366) ELT 891 (Tri. Chan.) Bathinda Industrial Gases Pvt Ltd vs. CCE & GST, Bhopal - 2023 (384) ELT 342 (Tri. Del.) CC, CE & ST, Bangalore vs. Northern Operating Systems Pvt Ltd - 2022 (61) GSTL 129 (SC) M/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons of this Chapter or of the rules made thereunder with intent to evade payment of service tax, by the person chargeable with the service tax or his agent, the provisions of this sub-section shall have effect, as if, for the words "thirty/eighteen months", the words "five years" had been substituted. EXPLANATION - Where the service of the notice is stayed by an order of a court, the period of such stay shall be excluded in computing the aforesaid period of thirty months or five years, as the case may be." 7. Further, I find that in the show cause notice as well as in impugned order, the only ground stated for invoking the extended period is that had the audit not been conducted by the department, the Cenvat Credit wrongly availed would ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
