TaxTMI 
TaxTMI 
2015 (4) TMI 289
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.... of the Finance Act, 1994 before the Tribunal. We would not have interfered even if the show cause notice had been challenged at the outset. Considering the facts of this case, we would, in any event, have left the petitioner to avail the alternate remedy of challenging the show cause notice before the Commissioner. 3. The petitioner is registered with the Service Tax Department for "Works Contract Service" falling under Section 65(105)(zzzza) of the Finance Act, 1994. Subsequently, it obtained the inclusion in its registration certificate of consulting engineers services and transport of goods by road services under Section 65(105)(g) and (zzp), respectively, of the Finance Act. 4. The petitioner entered into a concession contract dated 28.08.2008 with "M/s Delhi Metro Rail Corporation" (DMRC) for "design, installation, commissioning, operation and maintenance of Airport Metro Express Line, New Delhi - Indira Gandhi International Airport - Dwarka Sector 21". The design and construction of basic civil structure was to be done by DMRC and made available to the petitioner progressively for design, supply, installation, commissioning and operation of system and related works. Co....
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.... cess, respectively. The show cause notice summarised the credits taken on capital goods, inputs and input services derived from the ST-3 returns for the period 2009- 10 and 2010-11 and stated that the petitioner had not provided any details in respect of the usage of certain goods and also did not supply sample copies of invoices of such goods. On the basis of the available record including ST-3 returns, the show cause notice listed the major items on which CENVAT credit had been availed. The show cause notice then referred to the inadmissible CENVAT credit in respect of capital goods, inputs and input services. It stated that it appeared that the said amount of about Rs. 65 crores along with interest was liable to be recovered under Section 73 of the Act read with rule 14. The show cause notice further stated that it appeared that the petitioner had intentionally and wilfully suppressed the fact of availing the allegedly inadmissible CENVAT credit and that the same were, therefore, liable to be denied and recovered within five years from the relevant date under Section 73 of the Act. The petitioner was, therefore, called upon to show cause to the Commissioner why the said amount ....
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....or five years, as the case may be. ..... ...... ...... ...... (2A) Where any appellate authority or tribunal or court concludes that the notice issued under the proviso to sub-section(1) is not sustainable for the reason that the charge of,- (a) fraud; or (b) collusion; or (c) willful misstatement; or (d) suppression of facts; or (e) contravention of any of the provisions of this Chapter or the rules made thereunder with intent to evade payment of service tax, has not been established against the person chargeable with the service tax, to whom the notice was issued, the Central Excise Officer shall determine the service tax payable by such person for the period of eighteen months, as if the notice was issued for the offences for which limitation of eighteen months applies under sub-section(1)." At the relevant time, the period prescribed in the main section was 12 months. 11. The Commissioner dealt with the entire matter in a detailed order which is now impugned before us. The order was forwarded under the cover of a letter dated 15.12.2014 which, inter alia, stated that an appeal may be filed against the same under the Central Excise Tax (Appeal) Rule....
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....d pursuant to the request of the respondent for the said three periods. As we also mentioned earlier, the respondent had requested the assessee by its letters dated 26.08.2011 and 08.09.2011 to provide copies of ST-3 returns for the said three periods and to furnish details of capital goods and inputs on which CENVAT credit had been availed and to clarify as to how the capital goods and inputs, on which the petitioner had availed CENVAT credit, were covered under the relevant rules. Further, some of the observations in the show cause notice and the findings in the impugned order were based on the scrutiny of the revised ST returns for the said period. Moreover, no replies had been received to the respondent's queries as to how the capital goods and inputs, in respect whereof the CENVAT credit was taken, fall within the definition of capital goods and inputs under the said Rules. Nor were details provided in respect of usage of said goods. The sample copies of the invoices of the said goods were also not supplied. Certain inferences were drawn on the basis of the available record. Even assuming that the petitioner denies these aspects/observations, it would make no difference so ....