M/s. Sunbeam Auto Pvt. Ltd. Versus Commissioner of Central GST & Excise, Alwar
Central Excise
2018 (4) TMI 1389 – CESTAT NEW DELHI – TMI
CESTAT NEW DELHI – AT
Dated:- 24-4-2018
Excise Appeal No. 50771 of 2018 SM – Final Order No. 51629 /2018-(SM)
Central Excise
Ms. Archana Wadhwa, Member (Judicial)
Ms Rinky Arora, Advocate for the Appellants
Shri H C Saini, AR for the Respondent
ORDER
Per Ms. Archana Wadhwa :
After hearing both the sides, I find that the appellants, who is engaged in the manufacture of Auto parts, availed cenvat credit of service tax of Rs. 18 lakh approx. paid in respect of services of Industrial Construction and Architect pertaining to construction of factory building, during the period 2011-2012 and 2012-2013. A part of the credit amount around Rs. 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 ser
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repair and maintenance services, she submits that there is no exclusion of the said service and even if they are availed outside the factory premises but within the industrial area, credit would be admissible. She also referred to various decision in support of her contentions.
4. Learned AR appearing for the Revenue reiterates the grounds of rejection adopted by Commissioner (Appeals) and submits that in absence of details of services, in respect of which the credit has been availed, it is not possible for the Revenue to know about the said services, in which case, the extended period would be available to the Revenue. However, on being asked as to whether there is any provision in the law requiring the assessee to give the details of input 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 i
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respect of which the credit was availed has not been reflected in ER 1 return and no document/ invoices stand given by the assessee. However, as is seen from the above observations of the appellate authority himself, no documents are required to be submitted by the assessee after 1996. 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.
7. Reference in this regard, can 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 sta
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In the absence of the same, assessee cannot be held guilty of any mala fide. As such, I hold that the entire demand having been raised after the normal period of limitation is time barred.”
8. Apart from the above, the Hon'ble Allahabad High Court in the case of Commissioner of Central Excise, NOIDA vs. Accurate Chemical Industries [2014 (310) ELT 441 (All)] has also observed that the short payment detected by audit team when the assessee has duly filed the ER 1 return on a monthly basis, cannot be considered to be a malafide and the Range Officer were required to carry out a detailed scrutiny of ER 1 returns and if the same would have been done, short payment would have been detected. In such a scenario, the Hon'ble High Court observed that there was no malafide intent and extended period was not available.
9. Identical are the facts in the present case also. The appellant have admittedly filed ER 1 returns declaring the quantum of credit availed by them and the Revenue had not take
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