TaxTMI 
TaxTMI 
2016 (5) TMI 135
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....ice which is exclusively used for auction of abandoned goods. The appellant have not discharged the service tax on the auction sale of abandoned goods. They have also availed the Cenvat Credit in respect of Insurance Auxiliary Service which is used for export stuff cargo on which no service tax was paid. The Cenvat Credit was disallowed by the adjudicating authority on the ground that these services were used exclusively for trading activity which is not a taxable service as well as for the export cargo which is again not taxable activity. The appellant aggrieved by the disallowance of the Cenvat Credit by the adjudicating authority, filed an appeal before the Commissioner (Appeals), who vide impugned order upheld the order of t....
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....ods are taxable or otherwise. Therefore in this situation, it cannot be said that there is a suppression of fact on the part of the appellant. Hence, the show cause notice for the period beyond 1 year is hit by limitation and demand is not sustainable. In support of his submission on limitation he relied upon the following judgments: (i) Krishna Auto Sales Vs. Commissioner of C.Ex.& S.T., Chandigarh-I-2015 (40) S.T.R. 1121 (Tri.Del.) (ii) Commissioner of C. Ex., Belapur Vs. Elder Pharmaceuticals Ltd. - 2015 (37) S.T.R. 241 (Tri.-Mumbai) As regard penalty he submits that since there is no suppression of fact involved the penalty under Section 78 could not have been imposed. 4. On the other hand, Shri B.Kumar Iye....
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....on of abandoned cargo is taxable or otherwise was very much in the knowledge of the appellant, the appellant intentionally availed the wrong credit. Secondly, as regard availment of wrong credit the department was never informed that the appellant is availing the credit on inadmissible input service and also for what purpose the service is used. Therefore the department was kept in dark which clearly indicates that there is a suppression of facts on the part of the appellant. 5. I have carefully considered the submissions made by both the sides. I find that the appellant availed the Cenvat Credit in respect of input service which were excl....
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.... Cenvat Credit. As regard details of availment of Cenvat Credit on the nature of input service is not known to the department therefore it cannot be accepted from the department to issue show cause notice within 1year unless until the facts are unearthed. Therefore, I am of the clear view that there is a suppression of fact on the part of the appellant therefore extended period in the first show cause notice dt. 3.10.2006 was rightly invoked. As regard penalty under Section 78 imposed on the appellant, I am of the view that Section 78 penalty can be imposed only when there is a suppression of fact, fraud, collusion, willful misstatement etc. In the present case, the suppression of fact involved only in the firs....