2018 (4) TMI 1389

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.... and 2012-2013. A part of the credit amount around Rs. 15,000/- relate to repair and maintenance of drains lying outside the factory premises. 2. Inasmuch as in the year 2011, the construction services were excluded from the definition of input services, as available in terms  of Rule2(l) of Cenvat Credit Rules, the Revenue entertained a view that the said services are not cenvatable. Accordingly, the  proceedings were initiated by way of issuance of show cause notice dated 28.1.2016, which stand upheld by the impugned order of authorities below. 3. Learned advocate appearing for the appellant assailed the impugned order on limitation by submitting that the entire credit was availed by reflecting the same in cenvat credit accoun....

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....voking the longer period of limitation. The appellant had taken a categorical stand that they had declared the disputed cenvat credit in their ER 1 return. The said  stand of the appellant is disposed of by Commissioner (Appeals) by observing as under: "..In this case the appellant have submitted that they had declared the amount of CENVAT credit availed by them in their ER1 returns and suppression of facts cannot be alleged against them and therefore, extended period of five years for recovery of wrongly availed CENVAT credit / duty was not invokable in their case and hence no penalty was imposable on them. After 1996 no documents on which credit has been availed are required to be submitted and therefore from the amount of credit s....

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....n availment and use of the credit in respect of independent and separate input services, it has to be held that there was suppression on their part, justifying the invocation of longer period of limitation. I note that in the returns, as the assessee is not required to give separate amount of credit availed by him in respect of separate services. The fact is that the credit so availed was part of the total credit availed by the assessee and was being duly reflected in the returns so filed. The appellant cannot be held guilty of suppression or mis-statement with an intent to evade payment of duty. It is to be kept in mind that a positive act with a mala fide intention is the requisite criteria for invocation of longer period of limitation. I....