TaxTMI 
TaxTMI 
2019 (3) TMI 1422
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....lling under Chapter 72 of CETA, 1985 and are availing facilities of CENVAT credit under Cenvat Credit Rules, 2004 (CCR). Appellant placed purchase order dt. 11/03/2011 on M/s. Simech Engineers Pvt. Ltd. Chennai (Simech, for short) for erection, commissioning and installation of the Sinter Plant. The Department conducted audit in the unit of the appellant and submitted the audit report FAR No.133/2012 dt. 17/05/2012 and raised observation based on the above purchase order and Invoice No.1 dt. 05/09/2011 that the credit taken on the fabrication and erection work service was coming under „Industrial Construction Service‟ and hence ineligible for credit. The appellant vide their reply dt. 21/06/2012 explained the scope of work being....
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....s taken cenvat credit under fabrication and erection service. He further submitted that the appellant also furnished the list of invoices connected with site preparation, developmental work, civil construction services, dismantling work, fixing of roofing sheets etc. in connection with the setting up of Sinter Plant on which cenvat credit had not been taken. But in spite of that, the adjudicating authority has concluded that the service provided by Simech was coming under Industrial Construction Service and hence ineligible for CENVAT credit. He also submitted that the purchase order dt. 11/03/2011 on Simech was for fabrication, transportation to site, erection, commissioning and installation of Sinter Plant in the factory. The description ....
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....struction service. He further submitted that the nature of service under which service provider had paid the service tax is unassailable by the Excise authorities having jurisdiction over the recipient of service and described the same as industrial construction service and deny the eligible credit. For this submission, he relied upon the following decisions:- i. CCE&C Vs. MDS Switchgear Ltd. [2008(229) ELT 485 (SC)] ii. Sarvesh Refractories Vs. CCE&C [2007(218) ELT 488 (SC)] iii. CCE, Ahmedabad Vs. Nahar Granites Ltd. [2014(305) ELT 9 (Guj.)] iv. CCE, Delhi Vs. Neel Metal Products Ltd. [2009(237) ELT 270 (P&H)] 4.3. It is his further submission that the service in the nature of erection, commissioning or installation of machinery, pla....
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....e recorded in the books of accounts and verified by the audit report, there is no suppression of facts. For this submission, he relied upon the following decisions:- i. Hindalco Industries Ltd. Vs. CCE, Allahabad [2003(161) ELT 346 (Tri. Del.)] ii. Calderys India Refractories Ltd. Vs. CCE, Aurangabad [2014(36) STR 102 (Tri. Mum.)] iii. Kamal Auto Finance Ltd. Vs. CST, Jaipur [2012(26) STR 46 (Tri. Del.)] iv. Jindal Vijayanagar Steel Ltd. Vs. CCE, Belgaum [2005(192) ELT 415 (Tri. Bang.)] [Affirmed in Commissioner Vs. JSW Steel Ltd. 2015(323) ELT A73 (SC)] 4.5. He also submitted that it is a settled law that merely based on audit objection, the larger period of limitation cannot be invoked when the other ingredients of suppression of fac....
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....ical structure. He also defended the invocation of longer period on the ground that the appellant never intimated the fact of availment of CENVAT credit paid on the services. He further submitted that due to detailed examination by the audit team, the irregular availment of ineligible credit was detected. In support of invocation of extended period, he relied upon the following decisions:- i. Aksh Optifibre Ltd. Vs. CCE, Jaipur-I [2018(10) GSTL 551 (Tri. Del.)] ii. Lally Automobiles Pvt. Ltd. Vs. CST, Delhi [2018(10) GSTL 310 (Tri. Del.)] iii. CCEX, Ghaziabad Vs. Rathi Steel & Power Ltd. [2015(321) ELT 200 (All.)] iv. Tamil Nadu Co-Op. Textiles Processing Mills Ltd. Vs. CCE, Salem [2007(207) ELT 593 (Tri. Chennai)] v. Bajaj Tempo Ltd. ....
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.... Further I note that in view of the settled legal position that the authorities having jurisdiction over the recipient of inputs and inputs services cannot determine the classification and value of the services and the decisions relied upon by the appellant cited supra on this issue is clearly in favour of the appellant. The ratios of the above said decisions is clearly applicable in the present case because the service provider had paid the service tax on fabrication, erection etc. of the Sinter Plant under erection, commissioning and installation service and the same cannot be described as industrial construction service by the authorities having jurisdiction over the factory of the appellant and thereby deny the CENVAT credit. Further I ....