2013 (8) TMI 125

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....nt during this period availed Cenvat credit of Rs. 2,92,105/- in respect of outward freight. The department was of the view that sales were at the factory gate and hence the outward freight for transportation of the goods upto the customer's premises cannot be treated as input service. On this basis, after issue of show cause notice dated 23/06/2009, the Jurisdictional Assistant Commissioner vide order-in-original dated 23/2/10 confirmed the Cenvat credit demand of Rs. 2,92,105/- alongwith interest and imposed penalty of Rs. 2,000/- on the appellant. In this order, the Assistant Commissioner observed that the only situation in which the Cenvat credit of service tax paid on outward freight for transportation of finished goods upto the custom....

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....he Cenvat credit is not sustainable. He also pleaded that irrespective of the merits of the case, the demand of Cenvat credit raised vide show cause notice dated 23/6/09 in respect of period from January 2005 to 31/3/07 is time barred as during the period of dispute, there were conflicting judgments on this issue till the issue was resolved by judgements of Honble Karnataka High Court in the case of CCE, Bangalore vs. ABB Ltd. (supra) and judgment of Honble Gujarat High Court in the case of Commissioner vs. Parth Poly Woven Pvt. Ltd. (supra), and for this reason also, the impugned order upholding the Cenvat credit demand alongwith interest and imposition of penalty is not sustainable. On the issue of time bar, he relied upon Hon'ble Supre....

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....uld be the customer's premises, that as regards the limitation, the appellant had suppressed the relevant facts from the department and hence the longer limitation period has been correctly invoked. He, therefore, pleaded that there is no infirmity in the impugned order. 5. I have considered the submissions from both the sides and perused the records. 6. The Cenvat credit demand is for the period from January 2005 to 31/3/07 and the show cause notice has been issued on 23/06/2009 i.e. after the expiry of normal period of one year from the relevant date. For invoking longer limitation period under proviso to Section 11A (1) of the Central Excise Act, the department has to prove that the wrong availment of Cenvat credit took place on accoun....