Custom, Excise & Service Tax Tribunal
Cce Pune Ii vs Kumbhi Kasari Sahakari Karkhana Ltd on 10 November, 2010
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL, WEST ZONAL BENCH AT MUMBAI
COURT NO. II
APPEAL NO. E/997/09 Mum
(Arising out of Order-in-Appeal No. PII/PAP/120/2009 dated 10.06.2009 passed by the Commissioner of Central Excise (Appeals), Pune II)
For approval and signature:
Honble Shri Ashok Jindal, Member (Judicial)
1. Whether Press Reporters may be allowed to see : No
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 : Yes
of the Order?
4. Whether Order is to be circulated to the Departmental : Yes
authorities?
CCE Pune II
:
Appellant
Versus
Kumbhi Kasari Sahakari Karkhana Ltd.
Respondent
Appearance Shri S.M. Vaidya, JDR for Appellant Shri M.A. Nyalkalkar, Advocate for Respondents CORAM:
Shri. Ashok Jindal, Member (Judicial) Date of Hearing : 10.11.10 Date of Decision : 10.11.10 ORDER NO.
Per : Ashok Jindal Revenue has filed this appeal against the impugned order wherein the input service credit taken by the respondent was held to be correct by the lower appellate authority as well as holding that the extended period is not invokable in this case.
2. The learned DR submit that the respondents are engaged in the manufacture of sugar and molasses as well as rectified spirit and denatured spirit. The rectified spirit is an exempted product and the respondents are required to reverse CENVAT credit of duty paid on input and input service used in the manufacture of exempted product. As the respondent has availed services of goods transportation agency on inputs brought into the respondents factory and availed input service credit on this service, the respondent is required to reverse proportionate input service credit availed by them on the services which portion has gone in manufacturing of exempted product viz. rectified spirit. Hence the impugned order is liable to be set aside.
3. On the other hand the learned Advocate for the respondent submits that the impugned order has been passed by the lower appellate authority on two grounds (1) On merits and (2) on limitation. The Revenue has not challenged the findings of the lower appellate authority on account of limitation. Hence the appeal deserves rejection.
4. Heard and considered.
5. In this case the impugned period is between 2005-06 and 2006-07 for which a show-cause notice has been issued on 16.07.2008. In the impugned order the Commissioner (Appeals) has clearly held that the extended period should not have been invoked since the assessee has been filing ER-1 returns regularly and alleged wrong availment of credit was on account of audit objection. In other words, when the alleged short payment / wrong availment of CENVAT credit is based on the audit objection, the question of extended period is not available to the department in view of the fact that the alleged short payment / wrongly availment of CENVAT credit was found out only from the records maintained/produced by the appellant. On this count also, the extended period is not available to the department. These findings are not challenged by the department in this appeal. Further, in the case of CCE vs. Spade Elektro (P) Ltd. - 2004 (175) ELT 319 (Tri.) the Tribunal has held that when the issue has been decided in favour of assessee by Commissioner (Appeals) on merits as well as on limitation, the appeal filed by the department only on merits and not on limitation, the appeal is not maintainable as the same is barred by time since the assessees activities is known to the department and the assessee succeeds on limitation. Following the same ratio here, as the department has not challenged the findings of the lower appellate authority on limitation, the same has attained finality, accordingly, the impugned order is upheld. The appeal filed by the Revenue deserves no merits, hence rejected.
(Dictated in Court) (Ashok Jindal) Member (Judicial) nsk 3