Custom, Excise & Service Tax Tribunal
Federal Mogul Tpr (India) Ltd vs Commissioner Of Central Excise, ... on 8 July, 2015
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL SOUTH ZONAL BENCH BANGALORE Appeal(s) Involved: E/2911/2012-SM [Arising out of Order-in-Appeal No. 227-2012 dated 16/08/2012 passed by CCE(Appeals-II) Bangalore] For approval and signature: HON'BLE SMT. ARCHANA WADHWA, JUDICIAL MEMBER 1 Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982? No 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? Seen 4 Whether Order is to be circulated to the Departmental authorities? Yes FEDERAL MOGUL TPR (INDIA) LTD YELAHANKA, BANGALORE 560 064 Appellant(s) Versus Commissioner of Central Excise, Service Tax And Customs BANGALORE-II NULL PB 5400 CR BUIDING...QUEENS ROAD, BANGALORE, - 560001 KARNATAKA Respondent(s)
Appearance:
Shri T.V. Ajayan, Advocate RAVI SHANKAR & CHANDER KUMAR, ADVOCATES 504, 4TH FLOOR, OXFORD TOWERS, 139, OLD AIRPORT ROAD, KODIHALLI, BANGALORE - 560 017 KARNATAKA For the Appellant Shri S.K. Singh, Commissioner(AR) For the Respondent Date of Hearing: 08/07/2015 Date of Decision: 08/07/2015 CORAM:
HON'BLE SMT. ARCHANA WADHWA, JUDICIAL MEMBER Final Order No. 21521 / 2015 Per : ARCHANA WADHWA The appellant is engaged in the manufacture of piston and piston rings classifiable under Chapter 84 of the Central Excise Tariff Act. They were availing the benefit of CENVAT credit of the duty paid on the inputs as also input services. They availed CENVAT credit of service tax paid on the input services during the period of May 2005 to the extent of around Rs.12.35 lakhs. An audit took place in the appellants factory in July 2005, who noted that the credit has been availed on the basis of debit notes. Accordingly, Audit observed that the appellant should produce all the relevant invoices before the concerned Superintendent, who would verify the same.
2. In the above background, the appellants were summoned by the jurisdictional Central Excise authorities for production of all the invoices in April 2006. The appellants accordingly produced all the invoices before the Range Superintendent on 17th and 19th April 2006.
3. Subsequently the appellants were issued a show-cause notice dt. 22/03/2010 alleging that the credit was actually availed by the appellant in May 2005 without producing the valid documents and as such the same is recoverable from them. The said proposal was made on the basis that the appellant did not produce the relevant Central Excise invoices before the Audit and there was no reference to the subsequent production of invoices by the appellant before the Range Superintendent. The appellant replied to the said show-cause notice contending that all the invoices stand produced before the Range Superintendent for verification.
4. The said plea was not accepted by the original adjudicating authority, who confirmed the demand along with interest and imposed identical amount of penalty. On an appeal against the said order, the Commissioner(Appeals) upheld the same by observing that the invoices were lacking in certain particulars like service tax registration and serial number of the same. In such a scenario, he held that the credit availed by the appellant was not correct. He also observed that in any case appellant had not produced the invoices for the credit to the extent of Rs.32,370/-. Accordingly he rejected the appeal.
5. Learned advocate appearing for the appellant submits that the only ground in the show-cause notice was non-production of invoices before the audit team. There is no denial of the fact that the said invoices were subsequently produced before the Range Superintendent. Commissioner(Appeals) is rejecting the appeal on the ground of some insufficiency in the said invoices, which was not the subject matter of the show-cause notice. In any case, submits the learned advocate that the service provider as also the appellant, as service recipient are falling within the jurisdiction of the same range and in the absence of any allegation that the service provider has not paid the service tax or the service recipient has not received the said services, the denial of the credit on hyper technical ground of non-mention of registration number is not justified. He submits that the services involved are management consultancy service as also commission agency service which have been held by catena of judgments, to be CENVATable input services. He also assails the impugned order on the point of limitation by submitting that the audit took place in the year 2005, invoices were produced before the Superintendent in April 2006 whereas the show-cause notice stands issued on 22/03/2010 i.e. after almost a period of 4 years from the production of invoices. In the absence of any mala fide, the invocation of longer period of limitation by the Revenue is not justified.
6. Countering the above submission, learned AR appearing for the Revenue draws my attention to the discrepancies pointed out by the Commissioner(Appeals) in the invoices and submits that the said deficiencies makes the invoices as ineligible document for the purpose of availment of credit. As regards limitation, he reiterates the findings of the authorities below.
7. After carefully considering the submissions made by both the sides as also by going through the impugned orders, I find favours that the appellants submissions on merits as also on limitation. The appellants were directed by the audit team to produce the relevant invoices before the range authorities, which action gets completed by April 2006. In spite of that, show-cause notice stands issued after a gap of around 4 years, that too without making any reference to the fact of filing of invoices and the verification of the same by the Range Superintendent. The notice is issued on the sole ground that the said invoices were not produced before the audit team. Needless to say that the appellants Range authorities were under a duty to verify the said invoices and to extend the benefit to the assessee, based upon the same. In any case, the observations of the appellate authority that the registration number does not stand mentioned in the said invoices, cannot be adopted by the Revenue as an excuse to deny the credit, especially in the absence of any allegation, much less with any allegation to the effect that service tax does not stand paid by the service provider and service does not stand received by the appellant. As such, I find no reasons to deny the credit to the appellant.
8. As regards limitation, in the light of the factual developments, as detailed in the preceding paragraphs, there is no justification for the Revenue to take a period of 4 years to issue the show-cause notice that too without verification of the documents submitted by the appellant. The credit was being availed by the assessee by reflecting the same in the monthly returns which were being regularly filed by the appellant. In such a scenario, no mala fide intention, with any intent to evade, suppress or mis-state the facts can be attributed to the appellant so as to invoke longer period of limitation. I accordingly hold that the demand being raised after normal period of limitation is barred.
9. In nutshell, appeal succeeds on limitation as also merits. The impugned order is set aside and the appeal is allowed with consequential relief to the appellant.
(Order pronounced and dictated in open court) ARCHANA WADHWA JUDICIAL MEMBER Raja.
6