Custom, Excise & Service Tax Tribunal
M/S Hetero Labs Limited Unit I vs Commissioner Of Central Excise, ... on 18 January, 2018
CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL
REGIONAL BENCH AT HYDERABAD
Bench SMB
Court I
Appeal No. E/30362/2017
(Arising out of Order-in-Original No. HYD-EXCUS-001-COM-049-16-17 dated 27.10.2016 passed by Commissioner of Customs, Central Excise & Service Tax, Hyderabad)
M/s Hetero Labs Limited Unit I
..Appellant(s)
Vs.
Commissioner of Central Excise, Customs and Service Tax, Hyderabad- I
..Respondent(s)
Appearance Shri Y. Sreenivasa Reddy, Advocate for the Appellant.
Shri P. S. Reddy, Assistant Commissioner (AR) for the Respondent.
Coram:
Honble Mr. M. V. Ravindran., Member (Judicial) Date of hearing: 18/01/2018 Date of decision: 18/01/2018 FINAL ORDER No. A/30033/2018 [Order per: M. V. Ravindran.] This appeal is directed against Order-in-Original No. HYD-EXCUS-001-COM-049-16-17 dated 27.10.2016.
2. Relevant facts that arises for consideration after filtering out of unnecessary details are appellants herein during the period March 2012 to January 2016 availed CENVAT credit on various inputs and input services. During the course of audit it was noticed that appellant had availed CENVAT credit which was considered as ineligible to the tune of approximately Rs. 3,72,43,061/-. A show cause notice was issued for demanding of such ineligible CENVAT credit. Appellant contested a show cause notice on merits and on limitation, before the Adjudicating Authority, they had produced various evidences informing invoices supporting their claim. The Adjudicating Authority after following the due process of law, accepted the contentions raised by the appellant in regard of eligibility to availed CENVAT credit to the tune of Rs 3,47,37,255/- and dropped the allegations made in the show cause notice. However, confirmed the denial of CENVAT credit of Rs. 20,78,259/- with interest and appropriated amount of Rs. 10,36,801/- paid by them and also imposed equal amount of penalty and extended the benefit of penalty 25% if the amount is paid within 30 days of the receipt of the order. The appellant is in appeal before the Tribunal against the confirmation of demand of Rs. 20,78,259/- along with interest and the penalties imposed.
3. Learned Counsel submits that the demand of Rs. 20,78 ,259/- is consisting of two parts. It is his submission an amount of Rs. 10,36,801/- is in respect of service tax paid on input services which are related to civil work (brick work) or painting work of new construction. It is his submission that they had reversed entire amount of credit, at the same time they contesting this amount on limitation. It is his submission on limitation the Adjudicating Authority has not given any findings which indicates that the contentions raised by the appellants were accepted. He would submit during the period in question, they were filing monthly returns regularly the audit units conducted audit regularly no points were raised by the audit party. It is his submission the case in the favour of appellant.
4. As regards the demand of further Rs. 10,41,458/-, it is his submission, the Adjudicating Authority has not considered the factual matrix as to the invoices were with the appellant it can be produced before the Adjudicating Authority, it is the submission that approximately thousands of invoices were produced and if few invoices are not found by the Adjudicating Authority, if indicated they would have done so.
5. Learned Departmental Representative reiterates the findings of the Adjudicating authority and submits that the CENVAT credit of Rs. 10,36,801/- is not contested both these were not excluded by them the eligibility to avail credit in Rule 2(l) of CENVAT Credit Rules, 2004. As regards the contention raised in the invoices being available with the appellant for an amount of Rs. 10,41,458/- it is his submission that appellant had not produced the documents before the lower authorities hence the amounts were correctly confirmed.
6. On careful consideration of submissions made by both sides, my findings on the issues disputed are as under:
6.1 As regards the CENVAT credit of Rs. 10,36,801/-, I find that the Adjudicating authority has recorded that this amount is regarding service tax paid on the services rendered on the Civil construction work or works contract service and painting work of new construction. He has recorded a clear finding that these services are excluded from eligibility to availed CENVAT credit under the inclusive clause of Rule 2(l) of the CENVAT Credit Rules, 2004, I find it so. The factual findings of the Adjudicating Authority are not controverted before the Tribunal. Accordingly, I hold that the confirmation of the demand of Rs. 10,36,801/- along with interest correct. As regards the point raised by the Learned Counsel on limitation for this amount, I find that the Adjudicating Authority has also recorded the extended period was correctly invoked and in my view the said findings do not require any interference. It is his submission that the appellant paid entire service tax of Rs. 10,36,801/- and along with interest and 25% amount of penalty, if it is so then the issue on this point stands concluded as per provisions of the Central Excise Ac, 1944, and nothing survives.
7. As regards the confirmation of demand Approximately of Rs. 10,41,458/- availed on invoices not found, I find that the Adjudicating Authority should have extended an opportunity to appellant to produce the documents. Without expressing any opinion on merits on this point, leaving the issue open, I remit the matter back to Adjudicating Authority to reconsider the issue afresh after granting an opportunity to produce the documents on which CENVAT credit has been availed to the extent of Rs. 10,41,458/-. The Adjudicating Authority will follow the principles of natural justice before coming to a conclusion.
8. The appeal stands disposed of as indicated herein above.
(Order dictated and pronounced in open court) (M. V. RAVINDRAN) MEMBER(JUDICIAL) Lakshmi.
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