TaxTMI 
TaxTMI 
2023 (8) TMI 1132
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.... pressing machine and kiln to hold the machines as required height and length, the aluminum coils have been used to prevent the damage of glass wool in the kiln. The appellant have claimed the cenvat credit on the aforesaid goods considering the same as capital goods i.e. components, parts and accessories of the machines. The case of the department is that since the aforesaid goods are not components, parts and accessories for capital goods i.e. machinery, credit cannot be admissible. 2. Shri Devashish K Trivedi, Learned Counsel appearing on behalf of the appellant submits that there is no dispute on use of goods on which cenvat credit was claimed, the same was used in the machinery and kiln in the factory of the appellant, therefore, the ....
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....return regularly and they were of bona fide belief that cenvat credit on these goods are available. He further submits that on this issue due to different interpretation there were conflicting judgments and subsequently, the larger bench gave the judgment which was reversed by the Hon'ble High Court. Due to all this contrary views taken by various benches of Tribunal, Larger Bench and also by Hon'ble High Court, no mala fide can be attributed to the appellant. Therefore, the demand is hit by limitation also as the same was raised beyond the normal period of one year from the date of show cause notice. He placed reliance on the following judgments:- Medicaps Limited - 2011 (24) STR 572 (Tri.Delhi) Parekh Plast (I) Pvt. Ltd.- 2012 (25) ST....
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.... credit rules. For this reason also no mala fide intention can be attributed to the appellant. 4.1 In the present case for the period of demand i.e. 19.10.2006 to 14.08.2007 the show cause notice was issued much beyond the normal period of one year i.e. on 25.06.2010. The appellant also cited various judgments on the identical facts and the issue involved in the present case that the demand is time bar. Some of the judgments are reproduced below:- CCE vs. Medicaps Limited - 2011 (24) STR 572 (Tri.Delhi) "4. We find no merits in the above contention of the revenue. Admittedly the credit availed by the assessee was reflected in the monthly returns. If there is no column in the monthly return to show the nature of service on which the cred....
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....iable products or services. Accordingly, he did not find favour with the appellant on two grounds. 5. As regards the invocation of longer period, he observed that no doubt, the appellants have filed regularly the ER-1 returns. The said returns have one column i.e. credit taken on the input services and the amount so availed. The said returns did not show that the appellants were availing credit of Service Tax paid on the invoices in the name of head office. This clearly reflects that they have suppressed the vital information and misdeclared the facts so as to justify the invocation of longer period of limitation. 6. After hearing both sides, I find that the Show Cause Notice was issued to the appellant on the sole allegation that the i....
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.... head office. If that be so, I really fail to understand as to how the appellant can be held guilty of any suppression or mis-statement of facts with intent to evade duty. If law does not require them to disclose the above facts, failure to disclose the same, by itself, cannot be equated with any suppression or mis-statement. 8. I, accordingly, hold the demand to be barred by limitation. 9. In view of the above, the appeal is allowed on merit as also on limitation." On the issue of invocation of longer period of demand the Hon'ble Supreme Court in the case of Continental Foundation Jt. Venture Vs. Commissioner of Central Excise , Chandigarh - I - 2007 (216) ELT 177 (SC) held as under:- "9. We are not really concerned with the other i....
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....e Tribunal apparently has not considered these aspects correctly. Contrary to the factual position, the CEGAT has held that no plea was taken about there being no intention to evade payment of duty as the same was to be reimbursed by the buyer. In fact such a plea was clearly taken. The factual scenario clearly goes to show that there was scope for entertaining doubt, and taking a particular stand which rules out application of Section 11A of the Act. 12. As far as fraud and collusion are concerned, it is evident that the intent to evade duty is built into these very words. So far as mis-statement or suppression of facts are concerned, they are clearly qualified by the word 'wilful', preceding the words "mis-statement or suppression of fa....