TaxTMI 
TaxTMI 
2016 (9) TMI 1108
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....e Appeal remedy available to them in terms of Section 86 of the Finance Act, 1994. By virtue of the said provision, the petitioner is entitled to file an Appeal before the CESTAT. 4. The learned counsel for the petitioner submitted that the only reason for which the petitioner has not availed the Appeal remedy is on the ground that the impugned proceedings has been initiated by the second respondent by invoking the extended period of limitation which is not invocable in the petitioner's case. Though such was the statement made in the Show-cause notice, dated 14.09.2012, which was controverted by the petitioner by an elaborate reply, dated 27.11.2012, the second respondent while passing the Order-in-Original, dated 18.11.2013 has not rendered any findings as to the aspect as to why the extended period of limitation is invocable in the instant case. 5. Firstly, it has to be pointed out that the question of limitation in these matters, especially, in Central Excise and Service Tax matters is not essentially a pure question of law, but a mixed question of fact and law. Therefore, question whether extended period of limitation could be invoked or not is essentially a question of f....
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....April 07 onwards under reverse charge mechanism (as Service recipient) in respect of commission paid by him to their overseas agent stationed at Dubai; that the assessee is availing input credit on the overseas commission paid by them under ISD and subsequently transfers the credit to offices located in Chennai and Kerala. Subsequently, the Finance Director of the petitioner was summoned to appear before the Superintendent and a statement was recorded from the said Official. Based on such documents and statements, the second respondent issued a show-cause notice dated 14.09.2012, among other things pointed out that:- "3.1. The assessee pays commission to his overseas agent towards his market promotional activity abroad which is determined on the foreign inward remittances. The assessee is not entitled to avail input credit on the provisions of non taxable service rendered under CCS / WCS i.e., Service Tax amount due on commission paid to the agent in respect of foreign inward remittances received towards projects having less than 12 residential units is ineligible. The assessee is availing input credit on the non-taxable service as corporate overhead and distributes the credi....
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....raph No.5.1 (quoted above) there is an averment as to why the extended period is being invoked in the Order-in-Original, there is no finding to the said effect and this defect was not rectified by the Appellate Authority and as this defect goes to the root of the matter, both the impugned orders are liable for interference by this Court exercising Writ Jurisdiction. 11. The Appellate remedy provided under the Act before the CESTAT is not only an efficacious, but an effective remedy and the CESTAT is entitled to appreciate and reappreciate the facts and therefore, there is no justification on the part of the petitioner to bye-pass the Appeal remedy, more particularly, on the only ground raised by the petitioner before this Court which is purely a question of fact. Nevertheless, this Court examined the Order-in-Original as to whether any finding has been recorded in this regard. It is not in dispute that the basis of the show-cause notice was set-out in the impugned order that deliberately the petitioner did not disclose the fact of availment of Input Service Credit of exempted service. The record of the proceedings show that the second respondent has discussed the matter pertaining....
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....five years" when any service tax has not been levied or paid or has been short levied or short paid or erroneously refunded by reason of fraud, or collusion, or wilful misstatement, or suppression of facts or contravention of any of the provisions of the said chapter or of the Rules made thereunder with intent to evade payment of service tax. 14. In the case on hand there is no allegation of fraud or collusion and the case against the petitioner is brought under Clause (c) to (e) in the proviso under Section 73(1), viz., wilful misstatement, suppression of facts, contravention of the provisions with intent to evade payment of service tax. On perusal of the show cause notice, dated 14.09.2012, the allegation against the petitioner which emerges upon investigation by the Special Investigation Team, verification of the records and documents produced by the petitioner and the statement given by the Assistant General Manager of the petitioner on 10.04.2012, is that they deliberately did not disclose the fact of availment of input services credit on exempted services either in the ST3 Returns or in any other manner to the Department. But for the investigation by the SIT the wrong availm....
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....erring to the Rules and decisions of CESTAT, Mumbai. 17. The second respondent while adjudicating the show cause notice has rendered factual findings to justify the proposal in the show cause notice as well as regarding the conduct of the petitioner being deliberate in not disclosing the facts. On a perusal of the impugned Order-in-Original as a whole, this Court finds that reasons have been recorded to justify the action. The relevant portions of the findings are as hereunder:- "The assessee prompting residential dwellings units either in the form of residential flats or villas. The assessee paid service tax on the commission amount paid to their overseas agent under Business Auxiliary Service (Import of Service) and have subsequently availed input credit on the same. Further as input service distributor they had distributed the input credit to their branches in Chennai & Kerala. On verification it was found that the assessee had wrongly availed input credit paid under BAS (on less than 12 residential dwelling units) being the non taxable output service rendered under CCS/WCS. It was noticed that the assessee have availed in-eligible input credit on the commission paid to overs....
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....y engaged in providing of exempted services shall not be distributed. In this case, the impugned credit pertaining to the exempted service alone and accordingly, the appellants are not entitled for both availing and distributing the same. 6. Regarding the plea of quantification, it is observed that the Impugned Order quantified based on the details provided by the appellants and on perusal, it revealed that there is no difference in the cenvat credit for the respective month as both the appellants and the Impugned Order mentioned the same amount as cenvat credit taken during the respective period. Further, the appellants had not quantified any differential amount towards their claim. Therefore, the appellant's plea does not require any consideration. 7. As regards the imposition of penalty under Section 78, it is observed that the appellants had taken the wrong credit for which they are not entitled. Such wrong availment of cenvat credit had not been in the knowledge of the Department. This was identified only during the investigation by the SIR wing of the Department which would have otherwise gone unnoticed. Thus, the appellants had contravened relevant provisions of Act ....