Custom, Excise & Service Tax Tribunal
M/S Nalwa Steel And Power Ltd vs Cce & St, Raipur on 30 June, 2016
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL West Block No. 2, R.K. Puram, New Delhi 110 066. Principal Bench, New Delhi COURT NO. II DATE OF HEARING : 30/06/2016. DATE OF DECISION : 30/06/2016. Excise Appeal No. 51187 of 2016 (SM) [Arising out of the Order-in-Appeal No. BHO-EXCUS-002-APP-316-15-16 dated 27/01/2016 passed by The Commissioner (Appeals), Customs, Central Excise & Service Tax, Raipur.] For Approval and signature : Honble Shri B. Ravichandran, Member (Technical) 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 would 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 : Department Authorities? M/s Nalwa Steel and Power Ltd. Appellant Versus CCE & ST, Raipur Respondent
Appearance Ms. Shweta Jain, Advocate for the appellant.
Shri Dharmendra Singh, Authorized Representative (DR) for the Respondent.
CORAM : Honble Shri B. Ravichandran, Member (Technical) Final Order No. 52284/2016 Dated : 30/06/2016 Per. B. Ravichandran :-
The short point in this appeal is the eligibility of the appellant for service tax credit in respect of service tax paid on transit insurance premium w.r.t. transport of goods from the factory gate to the buyers premises. It is the claim of the appellant that such transit insurance is necessary for safety of the goods and is part of their business expenditure of manufacture and sale of final products, as such eligible for credit. The learned Counsel appearing for the appellant submitted that irrespective of the merit, the demand is clearly hit by time bar. The period involved is April 2009 to September 2010 and the notice has been issued on 12/3/2014 after scrutiny of the records by the audit officers. The appellants have maintained all the relevant records, entered these credits and shown the credits in their statutory ER-1 returns filed with the Department regularly. The fact that the ineligibility of credit was raised by the audit officers based on the records maintained by the appellant itself will show that there is no suppression of fact and the credit is bonafidely taken in terms of their understanding of the legal provision. She also relied on certain decided cases to support the claim that any detection by routine audit cannot result in demand for invoking extended period alleging fraud etc.
2. The learned AR supports the findings of the lower Authorities and submitted that the service tax on transit insurance is clearly not covered by the scope of input services as these services are relating to clearance of goods beyond the place of removal.
3. Heard both the sides and examined the appeal records. Examining the question of time bar it is seen that the appellants availed the disputed credits during April 2009 to September 2010. These credits were reflected in all their records and statutory returns filed with the Department. The credit was found to be ineligible upon scrutiny by the officers of audit. The allegation of fraud, suppression, willful misstatement with intend to evade payment of duty has to have some positive act on the part of the appellant to sustain the same. Para 4 of the show cause notice made allegation to this effect without any elaboration of evidence or basis. The Tribunal in CCE, Jaipur I vs. Pushp Enterprises reported in 2011 (22) S.T.R. 299 (Tri. Del.) held to the effect that when the ER-1 returns containing the details credit were filed regularly extended period demand cannot be raised later in case it was found that certain credits are not eligible to the assessee.
4. Considering the above discussion and analysis, impugned order cannot be sustained on the questions of time bar. As such, the same is set aside and the appeal is allowed.
(Order dictated and pronounced in the open court.) (B. Ravichandran) Member (Technical) PK ??
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