M/S. Shree Khedut Sahakari Khand Udyog ... vs Commissioner Of Central Excise & S.T., ...

(Arising out of OIA-CCEA-SRT-II-SSP-238-U-S-35A dated 17.01.2013, passed by Commissioner (Appeals) Central Excise, & S.T., Surat)

M/s. Shree Khedut Sahakari Khand Udyog Mandli Limited.: Appellant (s)

VERSUS

Commissioner of Central Excise & S.T., Surat : Respondent (s)

Represented by :

For Appellant (s) : Shri Rahul Gajera, Advocate For Respondent (s) : Shri S.K. Shukla, Authorised Representative

For approval and signature :

Mr. P.K. Das, Honble Member (Judicial)

1 Whether Press Reporter 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 CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?

No 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

CORAM :

Mr. P.K. Das, Honble Member (Judicial)

Date of Hearing / Decision : 18.09.2015

ORDER No. A/11330/2015 Dated 18.09.2015

Per : Mr. P.K. Das;

Heard both sides and perused the record.

2. Learned Advocate appearing on behalf of the appellant submits that they are contesting the denial of CENVAT credit of Rs. 44,476/- availed on sales commission only on limitation. He further submits that the balance amount of Rs. 2,74,868/- on construction service is already paid by them and they are only contesting imposition of penalty. He submits that by show cause notice dated 09.03.2011, demand of service tax was raised for the period April 2006 to March 2007.

3. Tribunal in the case of Omega Paperbook Pvt. Limited vs. CCE, Vapi  Final Order No. A/10177/WZB/AHD/2013 dated 15.01.2013, set-aside the demand of CENVAT credit availed on service tax paid by the Commission Agent, for the extended period of limitation. The learned Advocate also relied upon the decision of the Tribunal in the case of Shilp Grauvers Limited vs. CCE & ST, Ahmedabad- Final Order No. A/10701/2015 dated 28.05.2015. I find that the demand of service tax of Commission Agent is required to be upheld on merit, but, it is not sustainable for the extended period of limitation. Learned Advocate submits that the entire demand on this issue is barred by limitation.

4. Regarding the demand of service tax of Rs. 2,74,868/-, on construction service for Residential Colony and Decoration charges, the appellant immediately reversed the credit as pointed out by the audit. There is no material available on record, the malafide of the appellant. The Tribunal in the case of CCE, Allahabad vs. Kisan Sahkari Chini Mills Limited  2008 (231) ELT 292 (Tri. Del.), on the identical situation, set-aside the penalty. In the present case, the penalty is imposed under Section 11AC of the Central Excise Act, which cannot be sustained in the facts and circumstances of the case, as there is no suppression of fact with intent to evade payment of tax.

5. In view of the above discussion, the denial of CENVAT credit of Rs. 44,476/- alongwith interest and penalty is set-aside on limitation. The denial of CENVAT credit of Rs. 2,74,868/- alongwith interest is upheld. Penalty is set-aside. The appeal filed by the appellant is disposed of in the above terms.

(Order dictated and pronounced in the Court)

(P.K. Das) Member (Judicial) .KL

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