Custom, Excise & Service Tax Tribunal
M/S. Balajee Structural (India) P. Ltd vs C.C.E. & S.T. Raipur on 7 April, 2015
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL, NEW DELHI PRINCIPAL BENCH, COURT NO. II Appeal No. E/50952/2014-EX(SM) [Arising out of Order-in-Original No. 324/RPR-I/2013 dated 08.10.2013 by the Commissioner of Customs, Central Excise & Service Tax (Appeals), Raipur]. For approval and signature: Honble Shri Ashok Jindal, 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/s. Balajee Structural (India) P. Ltd. .Appellants Vs. C.C.E. & S.T. Raipur .Respondent
Appearance:
Shri Manish Sharan, Advocate for the Appellants Shri V.P. Batra, DR for the Respondent CORAM:
Hon'ble Shri Ashok Jindal, Member (Judicial) Date of Hearing: 07.04.2015 FINAL ORDER NO. 51398/2015-EX(SM) Per Ashok Jindal:
The appellant is in appeal against the impugned order denying Cenvat Credit on outward transportation services.
2. During the period April 2010 to September 2011 the appellant availed input service credit on outward transportation services. During the course of the audit it was revealed that the appellant has taken Cenvat Credit on outward transportation services. Therefore, a show cause notice dated 23.01.2012 was issued to the appellant to deny the Cenvat Credit and same was adjudicated. Demand on account of denial of Cenvat Credit was confirmed along with interest and equivalent amount of penalty was also imposed. Aggrieved from the said order appellant is before me.
3. The Ld. Counsel for the appellant submits that the appellant is under bonafide belief that they are paying outward transportation charges. Therefore, they are entitled to take Cenvat Credit thereon and there were conflicting decisions. Therefore, extended period of limitation is not invokable. To support his contention he relied on the decision in the case of Real Ispat & Power Ltd. Vs. CCE Raipur Vide Final Order no. S/51804/2014-SM(BR) dated 16.05.2014, in the case of CCE Belgaum Vs. Vasavadatta Cements Ltd.-2011 (24) STR 542 (Kar.), Triveni Engineering & Indus Ltd. Vs. CCE Bangalore-2012 (26) STR (406) and in the case of Roop Polymers Vs. CCE Gurgaon-2011 (21) STR 74 (Tri-Del).
4. On the other hand Ld.AR reiterated the findings of the impugned order.
5. Heard the parties. Considered the submissions.
6. In this case the short issue involved is that whether the appellant is entitled to take input service credit on outward transportation services after 01.04.2008 or not. The answer this question is definitely no. The assessee can avail Cenvat Credit if the assessee satisfies the condition of the CBEC Circular No.97/8/2007 dated 23.08.2007. In this case the appellant has not provided any evidence that they have complied with the conditions of the said circular. Further, the contention of the Ld. Counsel is that the show cause notice has been issued be invoking extended period of limitation as there were conflicting decisions during the impugned period. But the Ld. Counsel has failed to produce any such contrary decision before me which relates to the impugned period. When specifically the definition for availment of the Cenvat Credit on outward transportation services has been changed w.e.f. 01.04.2008.The Ld. Counsel heavily relied on the decisions of this Tribunal in the case of Real Ispat Pvt. Ltd. to say that show cause notice is barred by limitation. The decision relied by this Tribunal while drafting the said case are of the period is prior to 01.04.2008. Therefore, said decision of this Tribunal is per incuriam and cannot be relied upon. As for the period post 01.04.2008 law is very clear that on outward transportation services Cenvat Credit is available if the assessee satisfies the condition of the CBEC Circular No.97/8/2007 dated 23.08.2007. As in this case appellant has failed to comply with the conditions of the said circular, therefore, appellant is not entitled to take Cenvat Credit on outward transportation services in this case for the period post 01.04.2008.
7. With these terms I do not find any infirmity with the impugned order. Same is upheld. Appeal filed by the appellant is dismissed.
(Dictated and pronounced in the open court)
(Ashok Jindal) Member (Judicial)
Bhanu
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E/50952/2014-EX(SM)