2018 (4) TMI 1389 – CESTAT NEW DELHI – TMI – CENVAT credit – input services – construction services – extended period of limitation – Held that: – the appellate authority has upheld the extended period on the short ground that the details of the services in respect of which the credit was availed has not been reflected in ER 1 return and no document/ invoices stand given by the assessee – as is seen from the above observations of the appellate authority himself, no documents are required to be submitted by the assessee after 1996.
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If there is no legal obligation on the part of the assessee to do a particular act, non observation of that procedure / act cannot be held to be violative of law – If the law does not require documents / invoices, non submission of the same by an assessee is in accordance with the law and cannot be held to be a suppression or mis-statement, with an intent to evade payment of duty, thus justifying the invocation of longer period of limitation.
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the period 2011-2012 and 2012-2013. A part of the credit amount around ₹ 15,000/- relate to repair and maintenance of drains lying outside the factory premises. 2. Inasmuch as in the year 2011, the construction services were excluded from the definition of input services, as available in terms of Rule2(l) of Cenvat Credit Rules, the Revenue entertained a view that the said services are not cenvatable. Accordingly, the proceedings were initiated by way of issuance of show cause notice dated 28.1.2016, which stand upheld by the impugned order of authorities below. 3. Learned advocate appearing for the appellant assailed the impugned order on limitation by submitting that the entire credit was availed by reflecting the same in cenvat credit account as also in the ER 1 return filed by them. As such, the notice issued in January, 2016 for the period 2011-2012 and 2012-2013, is hopelessly barred by limitation. She has also drawn my attention to observations made by Commissioner (Appeal
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services, he fairly agreed that no provision of law requires them to do so. 5. Inasmuch as the entire demand is barred by limitation, I propose to dispose of the appeal on the said issue. Admittedly, the show cause notice stand issued by invoking the longer period of limitation. The appellant had taken a categorical stand that they had declared the disputed cenvat credit in their ER 1 return. The said stand of the appellant is disposed of by Commissioner (Appeals) by observing as under: ..In this case the appellant have submitted that they had declared the amount of CENVAT credit availed by them in their ER1 returns and suppression of facts cannot be alleged against them and therefore, extended period of five years for recovery of wrongly availed CENVAT credit / duty was not invokable in their case and hence no penalty was imposable on them. After 1996 no documents on which credit has been availed are required to be submitted and therefore from the amount of credit shown in the ER 1 re
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be made to Tribunal s decision in the case of Bajaj Hindustan Ltd. vs. CCE, Meerut I [2014 (33) STR 305 (Tri-Del)] wherein it was observed as under:- 7. Apart from allowing the appeals on merits, I also note that demands stand raised by invoking the extended period of limitation. The Commissioner has rejected the appellants plea that the proper returns under Rule 9(7) of the Cenvat Credit Rules, 2004 were filed by them by observing that since the appellants have not shown availment and use of the credit in respect of independent and separate input services, it has to be held that there was suppression on their part, justifying the invocation of longer period of limitation. I note that in the returns, as the assessee is not required to give separate amount of credit availed by him in respect of separate services. The fact is that the credit so availed was part of the total credit availed by the assessee and was being duly reflected in the returns so filed. The appellant cannot be held g
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