TaxTMI 
TaxTMI 
TaxTMI 
2021 (4) TMI 1401
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.... Tribunal'). 2. The Revenue is the appellant before this Court. 3. By the present appeal, the Revenue is questioning the order passed by the Tribunal to the extent it had allowed the appeal and set aside the Order-in-Original dt. 27.09.2013 passed by the adjudicating authority confirming the demand by invoking the extended period of limitation. 4. The respondent/ assessee is a public sector undertaking owned by the Government of India. The respondent is engaged in manufacture of Gas Turbines, Pumps, Bowl Mills etc., falling under Chapter 84 and 85 of Central Excise Tariff Act, 1985; that in addition to the said activity, the respondent is also engaged in the activity of trading of bought out goods; and that it had availed Cenvat cr....
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....antial change cannot have retrospective effect; that as the issue involved relates to interpretation, extended period of limitation cannot be invoked for demanding duty for the period April 2007 onwards; and that it did not resort to any suppression as audit was conducted by the Department in the year 2010 whereat the information and documents relating to the activities of respondent/ assessee were provided. 7. The above said submissions of the respondent/ assessee did not find favour with the Commissioner viz., appellant-Revenue, who by his order dt. 27.09.2013 in Order-in-Original No.24/2013-(Service Tax)- Commr., confirmed the proposals made in the show cause notice. 8. Being aggrieved by the said Order-in-Original, the respondent/....
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....amended by Finance Act, 2011 w.e.f. 01.04.2011. By the said amendment, it has been explicitly stated that the same would cover 'trading' also within its ambit. Prior to the above amendment, the reference to 'exempted service' in Rule 6 of the Rules had to reckoned with the definition as provided in Rule 2(e) of the Rules. It is only by virtue of explanation inserted vide Notification No. 3/2011-CE(NT) dt. 01.03.2-011 w.e.f. 01.04.2011, the activity of 'trading' has been specified as 'exempted service'. While the appellant/ Revenue contends the said amendment to be 'clarificatory', respondent/ assessee contends the same to be prospective in nature. 14. It is also not in dispute that the said issue during the subject period was considered ....
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....tatutory provisions placed by the appellant. We find that in an identical situation, this Tribunal in the case of AVL India Pvt. Ltd., (supra) has held that the extended period of limitation cannot be invoked to the issues concerning interpretation of the provisions contained in the explanation to Rule 2(e) ibid and accordingly, has held that the demand, if any, should only be confined to the normal period." 16. The Tribunal by placing reliance on the decision in AVL India Pvt. Ltd., 2017(4) GSTL 59 (Tri‐Del) in the facts of the present case held that that - "we do not find any merits in the impugned order, insofar as it has confirmed the adjudged demands under the extended period of limitation." 17. The finding a....
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.... and cannot be treated as contumacious or willful suppression". 19. In Pushpam Pharmaceuticals Company v. Collector of Central Excise, Bombay 1995 Supp (3) SCC 462 = 1995 (78) ELT 401 (SC), the Hon'ble Supreme Court, while considering analogous provision Section 11A of the Central Excise Act, 1944 held that - "the extended period can be invoked in respect of suppression of facts only if the non-disclosure was deliberate and aimed at evading payment of duty." 20. The Apex Court in Commissioner of Central Excise, Aurangabad v. Bajaj Auto Limited and Others (2010) 13 SCC 117, held that in order to Attract the provisions of Section 11A of the Central Excise Act, 1944, which confers power on the authority to invoke the extended period of l....