2019 (3) TMI 181 – CESTAT MUMBAI – TMI – Extended period of limitation – penalty – irregular credit availed on input services – credit on disputed services was reversed along with interest much before the issuance of the SCN – malafide intent present or not – Held that:- The allegation in the SCN is mere suppression of facts without anything further. There is no such allegation that the Appellants was under legal obligation to give invoice wise and item wise details of Cenvat credit which they have not given. Merely, mentioning malafide intention or suppression of facts or willful default is not sufficient. There has to have something more to prove malafide/ suppression/ willful default on the part of the Appellant.
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In the present case, none of the authorities below have brought out any evidence on record to substantiate the allegation of suppression of fact or willful default on the part of the Appellant. All the transactions were duly reflected in excise return and this itself
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able in the facts of the present case nor penalty is liable to be imposed on the Appellant.
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Appeal allowed – decided in favor of appellant. – APPEAL NO: E/87741/2018 – A/85424/2019 – Dated:- 28-2-2019 – Shri Ajay Sharma, Member (Judicial) Appellants: Shri Sanjay Dwivedi, Advocate Respondent: Shri Sanjay Hasija, Superintendent (AR) ORDER The core of dispute in the present appeal arising out of order-in-appeal nos. PVNS/250/APPEALS/ THANE/TR/2017-18/2423 dated 13/03/2018 is the invocation of the extended period of limitation as well as of penalty. 2. The brief facts of the matter are that the Appellant i.e. AIPL manufactured lubricating oil and grease, and their major input was base oil and additives. They delivered finished good to M/s. VCL for home consumption. In addition to supplying duty paid products to M/s. VCL for home consumption, the appellant also removed finished goods under bond for supplying to M/s. VCL for export to Nepal and for supply to SEZ/EOU. The Audit Team co
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Act, 1944 read with Rule 15 of Cenvat Credit Rules 2004. On appeal filed by the Appellant the ld. Commissioner vide impugned order dated 13.03.2018 upheld the confirmation of demand and rejected the appeal filed by the Appellant. 3. I have heard ld. Counsel for the Appellant and Learned Authorised Representative for the Revenue and perused the record. Learned Counsel for the Appellant submit that the Appellant received services from two different supplier. These services were in the nature of erection, renting of equipment like crane, boom lift, staircase etc., on temporary basis and the said services were essential for carrying out production activity and therefore the Appellant was under bonafide belief that the disputed services are covered within the definition input service as per Rule 2(l) of Cenvat Credit Rules, 2004. He further submitted that immediately after raising objection by the Audit, the Cenvat credit on disputed services was reversed along with interest much before th
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show cause notice is mere suppression of facts without anything further. There is no such allegation that the Appellants was under legal obligation to give invoice wise and item wise details of Cenvat credit which they have not given. Merely, mentioning malafide intention or suppression of facts or willful default is not sufficient. There has to have something more to prove malafide/ suppression/ willful default on the part of the Appellant. The Hon ble Supreme Court in the matter of Uniworth Textiles Ltd. Vs CCE, 2013(288) ELT 161 (SC) has laid down that mere non-payment of duty is not equivalent to collusion or willful suppression of facts and in order to invoke extended period, specific and explicit allegation must be proved by the Revenue. In the present case, none of the authorities below have brought out any evidence on record to substantiate the allegation of suppression of fact or willful default on the part of the Appellant. All the transactions were duly reflected in excise r
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CE 1995(75) ELT 721(SC) has laid down that suppression or mis-statement of facts must be willful to constitute a ground for the purpose of Section 11AC ibid and mis-statement or suppression of facts must be willful and the condition precedent for imposition of penalty is that the authority has to be satisfied that non-payment or short-payment of duty was deliberate with intention to evade payment of duty. Since on the facts of this case I have come to the conclusion that the authorities below have failed to brought on record any evidence to prove suppression on the part of the Appellant and the Appellant by his conduct has proved that there was no malafide intention on the part of the Appellant and it was only a bonafide error/belief on the part of the Appellant, therefore neither extended period of limitation is invocable in the facts of the present case nor penalty is liable to be imposed on the Appellant. The appeal is therefore allowed, with consequential relief, if any. (Pronounce
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