Custom, Excise & Service Tax Tribunal
Hindustan Petroleum Corporation Ltd vs Commissioner Of Central Excise ... on 7 April, 2025
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL
MUMBAI
REGIONAL BENCH - COURT NO. I
Excise Miscellaneous Application No. 85396 of 2024
(on behalf of Respondent)
In
Excise Appeal No. 85440 of 2016
(Arising out of Order-in-Original No. 24/SRK/COMMR/M-II/2015-16 dated
28.01.2016 passed by the Commissioner of Central Excise, Mumbai-II)
Hindustan Petroleum Corporation Ltd. .... Appellants
Refinery Division, B.D. Patil Road,
Mahul, Mumbai - 400074.
Versus
Commissioner of Central Excise, Mumbai-II .... Respondent
9th Floor, Piramal Chambers
Lalbaug, Parel,
Mumbai - 400 012.
Appearance:
Shri Sachin Chitnis, Advocate for the Appellants
Shri Dinesh Nanal, Authorized Representative for the Respondent
FINAL ORDER NO. A/85519/2025
Date of Hearing: 06.12.2024
Date of Decision: 07.04.2025
Per: M.M. Parthiban
This appeal has been filed by M/s Hindustan Petroleum Corporation
Limited (HPCL), Refinery Division, Mahul, Mumbai (herein after, referred to
as "the appellants", for short) assailing the Order-in-Original No.
24/SRK/COMMR/M-II/2015-16 dated 28.01.2016 (herein after, referred to
as "the impugned order") passed by the Commissioner of Central Excise,
Mumbai-II, Mumbai.
2. Revenue has filed this miscellaneous application bearing No.85396 of
2024, seeking change of name and address of the respondent arising on
account of change in jurisdiction of the Central Excise authorities. The
prayer made by the Revenue is considered and accordingly, the Registry is
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directed to incorporate the following changed name and address of the
respondent in the appeal records for the purpose of disposal of the appeal:-
"Commissioner of Central Goods Service Tax & Central Excise,
Navi Mumbai Commissionerate,
16th Floor, Satra Plaza, Sector -19D, Palm Beach Road,
Vashi, Navi Mumbai - 400 705".
3.1 Denial of CENVAT Credit of Service Tax paid on health/medical
insurance of employees, their dependents, retired employees, CISF
security, and taking of CENVAT credit on the basis of documents which are
not proper is the subject matter of present dispute. During EA-2000 audit
conducted by the department in November, December 2013 and January,
2014, they had examined the records maintained by the appellants, on the
basis of which CENVAT credit of service tax has been taken. The
department had objected to CENVAT credit taken on certain services on the
ground that these do not appear to be covered by the definition of 'input
service' under Rule 2(l) of the CENVAT Credit Rules, 2004 (CCR of 2004).
3.2 Accordingly, show cause proceedings were initiated for recovery of
CENVAT credit alleged to have been taken irregularly for an amount of
Rs.3,28,94,138/- along with interest under Rule 14 of CCR of 2004 read
with Section 11A(5) of the Central Excise Act, 1944 and for imposition of
consequent penalty under Rule 15(2) ibid vide Show Cause Notice (SCN)
dated 29.10.2015. In adjudication of the SCN dated 29.10.2015, learned
Commissioner of Central Excise had confirmed the entire CENVAT credit
demanded of Rs.3,28,94,138/-, and also had appropriated
Rs.1,24,30,723/- being CENVAT credit voluntarily reversed by the
appellants on service tax paid on premium of health/medical insurance of
dependent family members of the employees; and further imposed of equal
amount of penalty under Rule 15(2) ibid read with Section 11AC ibid.
Feeling aggrieved with the impugned order dated 28.01.2016, the
appellants had preferred this appeal before the Tribunal.
4.1 Learned Advocate appearing for the appellants had submitted that the
appellants are engaged in manufacture of petroleum and petroleum oil
products (POL) by processing it in their refinery at Mahul, Mumbai, where
crude petroleum is obtained through pipelines from the port jetties and off-
shore platforms are subjected to refining process. As the products are
hazardous in nature, the appellants are required to comply with safety,
security aspects and the entire refinery plant is required to be maintained
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for compliance with environmental protection and regulatory requirements
of Petroleum & Natural Gas Regulatory Board. In the manufacture of such
final products, the appellants have avail CENVAT credit of duties and tax
paid on input, input services and capital goods.
4.2 He further stated that CENVAT credit availed in respect of medical/
health insurance coverage of the family members of employees have
already been reversed for an amount of Rs.1,24,30,723/- (vide Entry
No.4014 dated 29.01.2014 for Rs.67,65,447/- and Entry No.617 dated
30.06.2014 for Rs.56,65,276/-), prior to issue of SCNs dated 07.11.2014
& 29.10.2015. Hence, he pleaded that no penalty is imposable on such
amount reversed by the appellants on their own, and when sufficient
balance of credit in CENVAT account existed during the relevant period.
4.3. Learned Advocate submitted that group medical insurance of
employees are required to be taken as per the statutory requirement under
Section 38 of Employees' State Insurance Act, 1948; and that CISF security
personnel for the refinery campus are being employed as per the
mandatory instructions of the Ministry of Home Affairs, and in as much as
the definition of input service include services used in relation to 'security',
the service tax paid on health, medical insurance services of security should
be admissible to them as eligible CENVAT credit. He further stated that
these statutory requirements are essential services in manufacturing of
petroleum products. Hence, he pleaded that the service tax paid on such
services should also be available to them.
4.4 In respect of objection to the documentation on the basis of which
CENVAT credit was taken, he stated that the appellants had received final
invoices issued by New India Assurance Company Limited (NIA). Hence, he
stated that use of words indicating 'To whomsoever it may concern' in the
provisional premium payment certificates issued initially for the same by
NIA, which are used by the appellants for taking CENVAT credit, shall not
be regarded as inadmissible documents. On the above basis, he justified
that the appellants are eligible for CENVAT credit and claimed that the
impugned order is not sustainable to the extent it has denied the credit on
medical/health insurance services.
5. Learned Consultant relied upon the following judgments in support of
their stand :-
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(i) Dharti Dredging & Infrastructure Ltd. Vs. Commissioner of Central
Tax, Secunderabad GST - 2022 (59) G.S.T.L. 171 (Tri. - Hyd.);
(ii) Ganesan Builders Ltd. Commissioner of Service Tax, Chennai -
2019 (20) G.S.T.L. 39 (Mad.);
(iii) Hindustan Petroleum Corporation Ltd. Vs. C.C.E., Visakhapatnam-
I - 2017 (47) S.T.R. 33 (Tri.- Hyd.);
(iv) Hindustan Petroleum Corporation Ltd. Vs. Commissioner of C. Ex.,
Mumbai-II - 2018 (12) G.S.T.L. 305 (Tri.- Mumbai)
6. Learned Authorised Representative (AR) appearing for the department,
on the other hand, submitted that the definition of 'input services' under
Rule 2(l) ibid has undergone a change, which exclude various input services
which are used for personal consumption and such services which are
excluded in the scope of coverage of 'input service' include health services,
life insurance, health insurance and travel benefits extended to employees.
Therefore, he reiterated the findings in the impugned order and claimed
that the impugned order is sustainable and appeal filed by the appellants
cannot be entertained.
7. Heard both sides and perused the records of the case. We have
examined the submissions advanced by the learned Consultant appearing
for the appellant and the learned Authorized Representative of the
Department during the time of hearing. Further, we have also perused the
additional written submissions in the form of paper books submitted by
both sides along with citation of case laws which both sides have mentioned
in support of their case.
8.1 The issue involved in this appeal is the eligibility to avail CENVAT
credit on health/medical insurance service which were utilized by the
appellants during the course of manufacture of petroleum products in their
petroleum refinery at Mahul, Mumbai. It is an undisputed fact of the case
that service tax has been paid on all the input services which are in dispute.
The only dispute is whether such services can be treated as eligible 'input
service' as defined under Rule 2(l) of the CCR of 2004, for the purpose of
taking CENVAT Credit by the appellants. There is no dispute that the
appellants are eligible to avail CENVAT credit. It can be seen from the
factual matrix of the case that the said services were utilized by the
appellants during the course of manufacture of petroleum products as the
employees and CISF security personnel are essentially required in their
manufacturing operations.
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8.2 In order to address the above issue of eligibility to avail the Cenvat
credit on various input services, we would like to refer the relevant legal
provisions contained in Cenvat Credit Rules, 2004as it existed during the
disputed period in respect of the taxable service under dispute.
"Definitions.
2. In these rules, unless the context otherwise requires,--
(l) 'input service' means any service,--
(i) used by a provider of output service for providing an output service; or
(ii) used by a manufacturer, whether directly or indirectly, in or in relation
to the manufacture of final products and clearance of final products up to
the place of removal,
and includes services used in relation to modernisation, renovation or
repairs of a factory, premises of provider of output service or an office
relating to such factory or premises, advertisement or sales promotion,
market research, storage upto the place of removal, procurement of
inputs, accounting, auditing, financing, recruitment and quality control,
coaching and training, computer networking, credit rating, share registry,
security, business exhibition, legal services, inward transportation of
inputs or capital goods and outward transportation up to the place of
removal;
but excludes--
(A) service portion in the execution of a works contract and
construction services including service listed under clause (b) of section
66E of the Finance Act (hereinafter referred as specified services) in so far
as they are used for-
(a) construction or execution of works contract of a building or a civil
structure or a part thereof; or
(b) laying of foundation or making of structures for support of capital
goods,
except for the provision of one or more of the specified services; or
(B) services provided by way of renting of a motor vehicle, in so far as
they relate to a motor vehicle which is not a capital goods; or
(BA) service of general insurance business, servicing, repair and
maintenance , in so far as they relate to a motor vehicle which is not a
capital goods, except when used by--
(a) a manufacturer of a motor vehicle in respect of a motor vehicle
manufactured by such person; or
(b) an insurance company in respect of a motor vehicle insured or
reinsured by such person; or
(C) such as those provided in relation to outdoor catering, beauty
treatment, health services, cosmetic and plastic surgery, membership of a
club, health and fitness centre, life insurance, health insurance and travel
benefits extended to employees on vacation such as Leave or Home Travel
Concession, when such services are used primarily for personal use or
consumption of any employee.
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Explanation.--For the purpose of this clause, sales promotion includes
services by way of sale of dutiable goods on commission basis."
8.3 On careful reading of the definition of 'input service' under Rule 2 (l)
of CCR, 2004 as above, We find that it provides for three categories of
services, out of which the first category viz., (i) 'means' part of the
definition, generally cover services which are used directly or indirectly, in
or in relation to manufacture of final goods or for providing of output
services; the second category viz., (ii) 'inclusion' part of the definition,
specifically state certain services used in relation to various activities, which
is used in relation to the manufacture of final products or provision of output
services, both of which are covered under the scope of 'input services'.
Further, the third category, viz., (iii) 'exclusion' part of the definition
provided under Clauses (A), (B), (BA) and (C), specifically provide for
certain services or portion of such services, which are not included in the
above definition of 'input service'. However, there are certain exceptions to
this exclusion which are also given in the form of 'except for provision of
certain services', 'except when used by certain category of persons', 'when
such services are not primarily used for specified use' etc. Therefore, we
are of the considered view that in order to come to the conclusion that a
particular service is covered as 'input service', either it could be covered
under category (i) or (ii) of the definition of input service as explained
above, and such input service should not fall under the exclusion clauses
mentioned in the third category (iii) above.
9.1 In respect of group medical/health insurance policy taken for their
employees, we find that the technicians of prescribed threshold limit of
wages/salary, who are required to work in the refinery, were required to be
insured in terms of Section 38 of Employees' State Insurance Act, 1948, for
ensuring the compensatory benefits to employees in case of sickness,
maternity and employment injury. The relevant provision reads as follows:
"38. All employees to be insured:
Subject to the provisions of this Act, all employees in factories or
establishments to which this Act applies shall be insured in the manner
provided by this Act."
Therefore, the appellants are mandatorily required to take
medical/health insurance for their employees in compliance with the above
statutory requirement. However, for those employees who are not covered
by the ESI scheme, general medical/health insurance has been taken by
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the appellants. We have perused the insurance coverage under sample
copies of the insurance policy produced by the appellants dated 01.04.2011
& 01.04.2012 given by the insurer M/s New India Assurance Company
Limited, wherein it is seen that the insured is the appellants company M/s
Hindustan Petroleum Company Limited itself. Therefore, it is evident that
the beneficiary of such services is the appellants and not the individual
employees. Therefore, the embargo put on the input services used
primarily for personal use or consumption of any employee for exclusion
from the scope of coverage of 'input service' under Clause (C) of Rule 2(l)
of CCR of 2004, does not apply to the present case.
9.2 We find that the dispute in respect of availment of Cenvat credit on
medical insurance service is no more open to debate, as in a number of
cases the Tribunal has held the same as admissible. The relevant
paragraphs of order of the Tribunal in the case of Honda Motorcycle &
Scooter (I) Pvt. Ltd. Vs. Commissioner of C. Ex. Delhi-III - 2016 (45) S.T.R.
397 (Tri. -Chan.) is extracted and given below:
"(iii) The medical insurance and life insurance service :
4.1 The credit on the medical insurance and life insurance service was
denied to the appellants relying on the Circular No. 843/4/2011-CX., dated
29-4-2011 wherein, it has been held that the credit is not allowed on the
services used primarily for welfare of the employees.
4.2 Learned Counsel argued that the insurance is for the employees'
welfare and is required in terms of Section 38 of Employees State
Insurance Act. She argued that the scope of insurance taken is same as
required under ESI Act. She also relied on the decision of Hon'ble
Karnataka High Court in the case of Stanzen Toyotetsu India (P)
Ltd. - 2011 (23) S.T.R. 444 (Kar.) wherein the Hon'ble High Court has
observed as follows : -
14. In so far as Insurance coverage to the employees is concerned in the
course of employment if the employees suffer injury or dies, there is a
vicarious liability imposed on the employer to compensate the employee. If
the employer employs its own transportation facility in order to cover the
risk which also includes the risk of workers who are covered in that statutory
establishment. He has to take the insurance policy without which the vehicle
cannot go on the road. Under the Workmen's Compensation Act he has to
obtain the Insurance Policy covering the risk of the employees. The
Employees' State Insurance Act takes care of the health of the employees
also and casts an obligation on the employer to provide insurance services.
Under these circumstances, this Group Insurance Health Policy though is also
a welfare measure is an obligation which is cast under the Statute that the
employer has to obey. Section 38 of the Employees' State Insurance Act,
1948, mandates that subject to the provisions of the Act, all employees in
factories or establishments to which this Act applies shall be insured in the
manner provided by this Act. May be the employees also have to contribute
but the employer is under an obligation to take an insurance policy and
contribute his share. Therefore, the said Group Insurance Health Policy taken
by the assessee is a service which would constitute an activity relating to
business which is specifically included in the input service definition.
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4.3 Learned AR argued that apart from insurance the employees are also
availing the medical allowances and therefore medical insurance risk
coverage is nothing but welfare of the employees.
4.4 We have considered the rival submissions. Learned Counsel has
argued that the insurance is strictly in terms of Section 38 of ESI Act. In
terms of the decision of Hon'ble Karnataka High Court (supra), so long as
the insurance is in terms of Section 38 of ESI Act the credit of the service
tax paid is allowed. The appeal on this count is allowed."
9.3 We further find that the Hon'ble High Court of Karnataka has held the
medical insurance service as admissible for availing the Cenvat credit as input
services. The relevant paragraphs of judgement in the case of Commissioner
of C. Ex. & Service Tax, LTU, Bangalore Vs. Micro Labs Ltd. - 2011 (270)
E.L.T. 156 (Kar.) is extracted and given below:
"This appeal is by the Revenue being aggrieved by the order of the
Tribunal which held that the assessees are liable to avail Cenvat credit
towards service tax paid on Group Mediclaim Policy premium.
2. The assessees are engaged in the manufacture of medicaments and
are holders of Central Excise Registration. On scrutiny of the records by
the authority it was seen that they had availed Cenvat credit for
payment made towards Group Mediclaim Policy premium. Accordingly,
a show cause notice was issued as to why the Cenvat credit availed by
the assessees towards payment of Group Mediclaim Policy premium
should not be demanded and recovered since it was irregularly availed
by them and also as to why the penalty and interest should not be
imposed. After submitting the reply the assessing authority confirmed
the demand, penalty and interest. Aggrieved by the same, an appeal
was preferred to the Commissioner who confirmed the order of the
assessing authority and dismissed the appeal. Aggrieved by the same
the assessees preferred an appeal before the Tribunal. The Tribunal by
placing reliance in the case of Stanzen Toyotetsu India Pvt. Ltd. v. CCE,
Bangalore-III reported in 2009 (14) S.T.R. 316 (Tri.-Bang.) held that
the assessees are entitled to avail Cenvat credit of the service tax paid
on Group Mediclaim Policy premium. Hence, the present appeal by the
Revenue.
3. The question for consideration therefore is as to whether the
assessees are liable to avail Cenvat credit towards payment of service
tax on the Group Insurance Health policy. An identical question came
up for consideration before the Division Bench in CEA 96/2009 and
connected matters which were disposed off on 8-4-2011. The question
considered therein was as to whether the assessees are entitled to claim
Cenvat credit for the service tax paid on Insurance/Health Insurance
policy. The Division Bench held that in so far as Insurance coverage to
the employees is concerned in the course of employment if the
employees suffer injury or dies, there is a vicarious liability imposed on
the employer to compensate the employee. If the employer employs its
own transportation facility in order to cover the risk which also includes
the risk of workers who are covered in that statutory establishment, he
has to take the insurance policy with which the vehicle cannot go on the
road. Even for entering into the premises to meet the obligations under
the workmen's compensation Act he has to obtain the Insurance Policy
covering the risk of the employees. The employee State Insurance Act
takes care of the health of the employees also and casts an obligation
on the employer to provide insurance services. Under these
circumstances, this Group Insurance Health Policy though is also a
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welfare measure is an obligation which is cast under the Statute that
the employer has to obey. Section 38 of the Employees State Insurance
Act, 1948, mandates that subject to the provisions of the Act, all
employees in factories or establishments to which this Act applies shall
be insured in the manner provided by this Act. May be the employees
also have to contribute but the employer is under an obligation to take
an Insurance policy and contribute his share. Therefore, the said Group
Insurance Health Policy taken by the assessee is a service which would
constitute an activity relating to business which is specifically included
in the input service definition.
4. Therefore, merely because these services are not expressly
mentioned in the definition of input service it cannot be said that they
do not constitute input service and the assessees are not entitled to the
benefit of CENVAT credit. Infact, Rule 3 of the Cenvat Rules, 2004,
specifically provides that the manufacturer of final products shall be
allowed to take credit. The service tax is leviable under Section 66 of
the Finance Act and paid on any input service received by the
manufacturer of a final product. Therefore under the scheme of the
Cenvat Credit Rules, 2004, the service tax paid on all those services
which the assessee has utilized directly or indirectly in or in relation to
the final product is entitled to claim the credit. Therefore, the Judgment
of the Tribunal is legal and valid and is in accordance with law and does
not suffer from any legal infirmity which calls for any interference.
5. Therefore it is evident that the assessees are entitled to avail Cenvat
credit of the service tax on Group Medical Policy and Group Insurance
Health Policy. Under these circumstances, the question of law that arises
for consideration in this appeal having since been answered by the
Division Bench as mentioned hereinabove, this appeal is dismissed in
view of the aforesaid reasons."
9.4 In respect of security services provided by CISF, we find that the
CISF has been tasked with providing security to all petroleum & oil
refineries, recognizing their strategic importance and the need for robust
security measures including fire safety, counter terrorist attack etc., As
such security services have become mandatory, the health/medical
insurance incurred in connection with such security staff shall also be
considered as integral part of the security services which are essential
'input service' required to be used in manufacture of petroleum products.
Further, 'security' services have also been specifically provided in the
inclusive part of the definition of 'input service' under Rule 2(l) ibid.
Therefore, we find that Service Tax paid on medical/health insurance
services for CISF Security as discussed above are eligible to be availed of
as CENVAT credit.
9.5 Accordingly, we hold that Service Tax paid on medical/health
insurance services for an amount of Rs.2,04,63,415/- as discussed above
are eligible for availing CENVAT credit as per statutory provisions discussed
under paragraphs 8.2, 8.3 & 9.1 above and as per the decision above
Hon'ble High Court and the Tribunal discussed in paragraphs 9.2, 9.3 and
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9.4 above. Therefore, we find that to this extent the impugned order is not
legally sustainable.
10. As regards the service tax paid on insurance premium in respect of
health/medical insurance of family members/dependents of the employees,
the appellants have already reversed the ineligible CENVAT credit prior to
the issue of SCN, on their own. Further, such claim made by the appellants
in their written submissions before the learned Commissioner including the
invoices in respect of insurance premium issued by NIA, was also got
verified from the jurisdictional Division/Range office. These have been
specifically recorded in the impugned order as follows:
"16. The written submissions of the noticee were forwarded to the Asstt.
Commissioner, Central Excise, Chembur-II Division, for verification. The
Asstt. Commissioner, Central Excise, Chembur-II Division vide letter
dated 21.01.2016, forwarded the verification report of the Range Officer
wherein it has been mentioned that the invoices submitted by the
assessee have been verified and found correct...
ORDER
23. I confirm demand of irregularly availed Cenvat credit of Rs.3,28,94,138/- (Rupees Three Crore Twenty Eight Ninety Four Thousand One Hundred Thirty Eight only) and order for recover of the same from M/s HPCL under Rule 14 of CENVAT Credit Rules, 2004 read with Section 11A(5) of the Central Excise Act, 1944.
24. I appropriate the amount of Rs.1,24,30,723/- (Rupees One Crore Twenty Four Lakh Thirty Thousand Seven Hundred Twenty Three only) reversed by M/s HPCL, against the demand confirmed at Para 23 above under Rule 14 of Cenvat Credit Rules 2004 read with Section 11A of the Central Excise Act, 1944.
...
26. I impose penalty of Rs.3,28,94,138/- (Rupees Three Crore Twenty Eight Ninety Four Thousand One Hundred Thirty Eight only) on M/s HPCL under Rule 15(2) of CENVAT Credit Rules, 2004 read with Section 11AC of the Central Excise Act, 1944."
In view of the specific findings given by the learned Commissioner in the impugned order that the disputed amount in respect of ineligible CENVAT credit with respect to health/medical insurance claim of dependant family members of employees having been paid and appropriated, we do not find that there exists any ground for imposition of penalty on the appellants and for levy of any interest on the above disputed amount, which have been confirmed as part of the adjudged demands in the impugned order.
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11. Further, from the facts of the case it also transpires that for the period from April, 2011 to March, 2014, two SCNs have been issued for denial of CENVAT credit, first one dated 07.11.2014 covering the period October, 2013 to March, 2014 and the second one dated 29.10.2015 covering 2011- 2012 and 2012-2013. The grounds for denial of CENVAT credit on health/ medical insurance service is common in both SCNs. In such a factual position, it is not feasible to invoke extended period of time for demand of CENVAT credit as done in this case, under the pretext 'that it was not possible to detect the wrong availment of Cenvat credit by the assessee, had the same not been categorically enquired by the Audit party'. It is also factually incorrect, as for the same input service CENVAT credit has been denied in the SCN dated 07.11.2014 for the same assessee-appellants.
12. We also find that the Hon'ble Supreme Court in the case of Bharat Petroleum Corporation Limited Vs. Commissioner of Central Excise, Nashik Commissionerate - (2025) 26 Centax 344 (S.C.) have held that extended period is not invokable in the case, where the document/details alleged to have been suppressed were known to the department. The relevant paragraphs of the said judgement dated 20.01.2025 is extracted and given below:
"33. Thus, the first ground is withholding or suppressing the MOU. We are dealing with a public sector undertaking. It is pertinent to note that the impugned judgment incorporates the letter dated 14th February, 2007 issued by the Board. The letter itself records that to ensure a regular supply of petroleum products, the Oil PSUs (OMCs) entered into an MOU at the behest of the Petroleum and Natural Gas Ministry. It also refers to the decision of the Tribunal in the case of Hindustan Petroleum Corporation Ltd. 2005 (187) E.L.T. 479 (Tri.-Bang) by stating that the said decision records that the sale price, as per the MOU, correctly represents the transaction value. Therefore, the department was aware of the MOU even before the date on which the show cause notice was issued. As noted earlier, the date of the MOU is 31st March, 2002. Moreover, as indicated in the said letter, MOU was referred to in the decision of the Tribunal in the case of Hindustan Petroleum Corporation Ltd. 2005 (187) E.L.T. 479 (Tri.-Bang) . It is pertinent to note that the date of the said decision is 28th February, 2005. In fact, in the said decision, a submission of the revenue has been recorded that the agreement between the oil companies indicates that the price of petroleum products agreed thereunder is not a normal price and, therefore, is not a transaction value. Hence, the first ground taken to support the invocation of the extended period of limitation cannot be sustained.12
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34. The second ground is that BPCL made the department believe that dual pricing was adopted as per the directions of the Government. A careful perusal of the show cause notice shows that it is not alleged that any such misrepresentation was made by BPCL that the pricing as provided in the MOU was adopted by the BPCL as per the directions of the Central Government. The reply to the show cause notice submitted by the BPCL contains no such representation. In the show cause notice, statements recorded of officers of BPCL and other OMCs have been referred to and relied upon. However, it is not alleged that any of the officers stated that the price of the goods sold under the MOU was fixed as per the directives of the Central Government. We have also carefully perused the order passed by the Commissioner on the show cause notice. Even in the order, no specific reference has been made to any such contention raised by BPCL or other OMCs. Even the order also refers to statements of the officers of BPCL and other OMCs. Hence, both the grounds in support of invoking an extended period of limitation cannot be sustained, and only on that ground, the demand cannot be sustained.
36. In this case, there is no allegation made by the Revenue of fraud, collusion or any wilful mis-statement on the part of the appellant. The stand taken is that the MOU was suppressed, and therefore, Section 11AC will apply. In view of the findings recorded above on the issue of the invocation of the extended period of limitation, the penalty could not have been imposed.
38. Therefore, the said appeal preferred by the BPCL deserves to be allowed by setting aside the entire demand on the ground that the extended period of limitation could not be invoked."
13. In view of the foregoing, we are of the considered view that the impugned order is liable to be set aside partly, to the extent it had denied CENVAT credit in respect of input services which were found to be eligible as 'input service' under Rule 2(l) of the Cenvat Credit Rules, 2004 for a total amount of Rs. 2,04,63,415/- as elaborated in paragraphs 8.2, 8.3, 9.1 to 9.4, 11 & 12 above and had imposed penalties on the appellants. Accordingly, in partial modification of impugned order dated 28.01.2016 to the above extent, we allow Cenvat Credit for an amount of Rs. 2,04,63,415/-. Further, we partially uphold the impugned order dated 28.01.2016 to the extent that it had denied Cenvat credit in respect of medical/ health insurance coverage of the family of employees for an amount of Rs.1,24,30,723/- which have already been reversed by the appellants as discussed earlier in paragraph 10 above.
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14. In the result, the appeal filed by the appellants is disposed of in the above terms. Miscellaneous application filed by respondent-Revenue are also disposed of.
(Order pronounced in open court on 07.04.2025) (S.K. Mohanty) Member (Judicial) (M.M. Parthiban) Member (Technical) Sinha