Custom, Excise & Service Tax Tribunal
Kohinoor Biscuits Products vs Noida on 13 March, 2019
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE
TRIBUNAL
REGIONAL BENCH : ALLAHABAD
COURT No. I
APPEAL Nos. E/55733 & 55734/2013-EX[SM]
(Arising out of Order-in-Appeal No.282-283/CE/APPL/NOIDA/2012 dated
29/08/2012 passed by Commissioner (Appeals), Customs, Central Excise &
Service Tax, Noida)
M/s Kohinoor Biscuits Products &
M/s Parle Products Pvt. Ltd. Appellants
Vs.
Commissioner of Central Excise, Noida Respondents
Appearance:
Ms. Manasi Patil (Advocate) & Ms. M. M. Patil (Advocate) for Appellant Shri Mohd. Altaf (Asstt. Commr.) AR for Respondent CORAM:
Hon'ble Mrs. Archana Wadhwa, Member (Judicial) Date of Hearing : 13/03/2019 Date of Decision : 13/03/2019 FINAL ORDER NOs. - 70551-70552/2019 Per: Archana Wadhwa After hearing both the sides, I find that the appellant i.e. M/s Kohinoor Biscuits Products are engaged in the manufacture of edible biscuits under an agreement with M/s Parle Products Pvt. Ltd., which authorizes them to manufacture biscuits on their behalf. Their entire production and clearance is being made to M/s Parle Products Pvt. Ltd.2 APPEAL Nos. E/55733 & 55734/2013-EX[SM]
2. As the appellant was availing Cenvat credit of service tax paid on various input services availed by M/s Parle Products Pvt. Ltd. on the basis of the invoices issued by them as input service distributor, the Revenue objected to the same and initiated proceedings by way of issuance of show cause notice dated 30/06/2011 proposing to deny the credit availed during the period January, 2008 to October, 2009. Similarly Cenvat credit availed by them in respect of tax paid on inward transportation and outwards transportation was objected and the same notice proposed to disallow the credit for the period August, 2008 to September, 2008.
3. The notices issued to them culminated into the impugned orders confirming the demand alongwith confirmation of interest and imposition of penalties upon both the appellants. The said orders are impugned before the Tribunal.
4. Learned advocates Ms. Manasi Patil appearing for the appellants fairly conceded that an identical issue of availment of credit on the basis of ISD invoices issued by M/s Parle Products, to their other contract manufacture was the subject matter of the Tribunal's decision in the case of Ruby Confectionery Pvt. Ltd. vs. CCE, Hyderabad 3 APPEAL Nos. E/55733 & 55734/2013-EX[SM] 2017 (47) S.T.R. 160 (Tri.-Hyd.). It was held that since the assessee was not manufacturing unit of principal manufacturer and was an independent entity having different Central Excise registration, the credit availed on ISD invoices issued by M/s Parle Products Pvt. Ltd. cannot be considered to be appropriate. However the benefit was extended on the ground of limitation by observing that the issue was of an interpretational nature and was agitated before Tribunal in many cases and as such extended period of limitation would not be available to the Revenue. As such, she submits that inasmuch as the demand in the present case also stands raised by invoking longer period in both the disputed issues, the impugned order be set aside.
5. After hearing learned A.R., I find that as per the order of the Tribunal in the above referred case, the benefit of limitation stands granted to the assessee on the ground that the issues being a bona fide issue of interpretation, no suppression or misstatement, with a mala fide intention can be attributed to the assessee. Similarly in case of availment of credit of service tax paid on GTA Services utilized for inward or outward transportation of the goods, the various decisions of the Tribunal, prevalent during the relevant period, allowed 4 APPEAL Nos. E/55733 & 55734/2013-EX[SM] such Cenvat credit and the legal position was reversed only subsequently by the Hon'ble Supreme Court decision in the case of Ultratech Cement Ltd. As such, in this scenario, invocation of longer period of limitation by the Revenue cannot be held to be justifiable.
6. In view of the above, impugned orders are set aside on the ground of limitation itself and both the appeals are allowed with consequential relief to the appellants.
(Dictated & Pronounced in Open Court) Sd/-
(Archana Wadhwa) Member (Judicial) Lks