TaxTMI 
TaxTMI 
TaxTMI 
2018 (1) TMI 420
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....lywood, Veneer, Pre-lamination Board etc. classifiable under Chapter 44 of the Central Excise Tariff Act, 1985. They are also engaged in the activity of Trading of Plywood of different types, namely, Decorative Plywood, Laminated Plywood etc. They are availing Cenvat credit benefit on inputs, capital goods and input services. (ii) A Show Cause Notice dated 05.07.2011 was issued proposing to disallow Input Service Credit of Rs. 4,00,523.00 availed on Advertisement and Publicity for brand promotion on account of trading goods for the period June 2010 to March 2011. (iii) Subsequently, another Show Cause Notice dated 04.04.2012 was issued by the Commissioner of Central Excise, Kolkata VII Commissionerate on the self same issue proposing t....
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.... the Cenvat Credit shall not be allowed on such quantity of inputs or inputs services which is used in the manufacture of exempted goods or for provision of exempted services, except in the circumstances mentioned in sub Rule (2). It is further submitted that with effect from 01.04.2011, the definition exempted service in Rule 2(e) of Cenvat Credit Rules, 2004 was amended by inserting explanation for removal of doubts, it hereby clarifies exempted services includes trading . The contention of the Learned Counsel is that the assessee is entitled to avail the credit on trading items prior to 01.04.2011. Regarding the appeal filed by the Revenue, the Learned Counsel submitted that on the self same issue Revenue issued a Show Cause Notice dated....
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....dvertisement and publicity for brand promotion on account of trading goods in violation of Rules 3 and 4 of the said Credit Rules should not be demanded from and paid by them along with appropriate interest in terms of Rule 14 of the said Credit Rules read with Section 11A and 11AB of the said Act." 7. On perusal of the aforesaid Show Cause Notice, it is clearly evident that the department was aware about the availment of input service credit towards advertisement and publicity for brand promotion taken on account of trading goods. So, the allegation made in the Show Cause Notice dated 04.04.2012 that there is a suppression of fact from the department with intent to evade payment of duty cannot be sustained. The Learned A/R for the Revenue....
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....Nos. 9271-9278 of 2003 filed by the department are dismissed. Questions of classification and marketability are left open. Parties shall bear their own costs." 8. The Hon'ble Gujarat High Court following the decision of the Hon'ble Supreme Court in the case of Nizam Sugar Factory (Supra) and other decisions on the identical issue allowed the petition. It has been held as under : 16. On a conjoint reading of the earlier show cause notices and the present show cause notices, it is apparent that the facts stated therein as well as the allegations made therein are more or less similar. The only difference, as pointed out by the learned counsel for the respondents is that in the impugned show cause notices, there is a reference to intelligenc....
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....n the part of the assessee as these facts were already in the knowledge of the authorities. In the circumstances, the respondents were not justified in invoking the extended period of limitation in respect of earlier periods by issuing the impugned show cause notices, on the plea of suppression of facts by the petitioners, as the facts were already in the knowledge of the Department. 17. For the foregoing reasons, the petition succeeds and is, accordingly, allowed. The impugned show cause notices F.No. V.15/15- 60/OA/2002 and F.No. V.15/15-61/OA/2002, both dated 2-7-2002 (Annexure E collectively) are hereby quashed and set aside. Rule is made absolute accordingly with no order as to costs. 9. After going through the facts and circumstanc....