Custom, Excise & Service Tax Tribunal
M.M. Aqua Technologies Ltd vs C.C.E., Delhi-Iii on 25 May, 2015
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL,
WEST BLOCK NO.2, R.K. PURAM, NEW DELHI-110066
BENCH-SM
COURT IV
Excise Appeal No.E/3652/2012 EX. [SM]
[Arising out of Order-in-Original No.49/SA/CCE/2012 dated 13.09.2012 passed by the Commissioner, Central Excise, Gurgaon].
For approval and signature:
HONBLE MR. S.K. MOHANTY, MEMBER (JUDICIAL)
1. Whether Press reporters may be allowed to see the
order for publication as per Rule 27 of the CESTAT
(Procedure) Rules, 1982?
2. Whether it should be released under Rule 27 of the
CESTAT (Procedure) Rules, 1982 for publication in
any authoritative report or not?
3. Whether Their Lordships wish to see the fair copy
of the Order?
4. Whether Order is to be circulated to the Departmental
authorities?
__________________________________________________
M.M. Aqua Technologies Ltd. Appellant
Vs.
C.C.E., Delhi-III Respondent
Present for the Appellant : Shri R.C. Gupta, Advocate
Present for the Respondent: Shri R.K. Mishra, DR
Coram: HONBLE MR. S.K. MOHANTY, MEMBER (JUDICIAL)
Date of Hearing/Decision: 25.05.2015
FINAL ORDER NO. 54187/2015
PER: S.K. MOHANTY
Denial of cenvat credit benefit on the input services namely, AMC on Computer, Courier charges, photocopy charges, rent-a-cab and AC Hire charges in the impugned order is the subject matter of present dispute. The submissions of the appellant are that the disputed services were used for the business related activities, and thus, to be considered as input service as per the definition contained in Rule 2 (l) of the Cenvat Credit Rules, 2004. To support the stand that the disputed services merit consideration as input service, the ld. Advocate appearing for the appellant relies on the judgement of Honble Karnataka High Court in the case of CCE, Bangalore III vs. Stanzen Toyotetsu India (P) Ltd. reported in 2011 (23) STR 444 (Kar.). The ld. Advocate further submits that the show cause proceedings initiated by the Department are barred by limitation of time.
2. The ld. DR appearing for the Revenue submits that with regard to rent-a-cab service, the charges for hiring the vehicles have been recovered from the employees of the company, and as such, service tax paid on such services will not be available as cenvat credit to the employer. To support his above view, the ld. DR relies on the decision of the Tribunal in the case of Titan Industries Ltd. vs. CCE, Bangalroe-I reported in 2011 (23) STR 600 (Tri. Bang.). He further submits that the courier charges paid by the appellant is towards clearance of finished product from the factory, which falls under the exclusion clause of definition of input service. In this regard, he relies on the decision of the Tribunal in the case of Hero Honda Motors Ltd. vs. CCE, Delhi-III reported in 2011 (274) ELT 89 (Tri.-Del.).
3. Heard the ld. Counsels for both the sides and perused the records.
4. I find that the proceedings initiated by the Central Excise Department for recovery of cenvat credit is barred by limitation of time, inasmuch as, the period involved in the present case is 2009-10, whereas show cause notice, seeking recovery of cenvat credit was issued in August, 2011. For invocation of extended period of limitation, the Department has to prove with tangible evidence that there is element of suppression, misstatement, etc. on the part of the assessee, with intent to evade payment of duty. The ingredients mentioned in the proviso to section 11A of the Central Excise Act, 1944 are absent in the present case for invocation of the extended period of limitation.
5. In this context, I find that this Bench of the Tribunal in the case of Moser Baer India Ltd. vs. CCE, Noida reported in 2014 (36) STR 815 (Tri. Del.), while allowing the appeal in favour of the appellant has held that since the credit taken by the appellant are reflected in the statutory records, no suppression of fact or misstatement or malafide intension can be attributed for invoking the longer period of limitation.
6. In view of above, the impugned order is set aside and the appeal is allowed in favour of the appellant on the ground of limitation.
(Dictated and pronounced in the open Court) (S.K. MOHANTY) MEMBER (JUDICIAL) Anita ??
??
??
??
0 2