Once the cause of default is not traced, it is not possible to determine whether that was reasonable or not. There is no whisper about deliberate breach of law by the appellant which normally is consideration while invoking penalty provision. Penalty being not automatically leviable and also no wilful breach of law is there, the matter deserves to be considered from the point of peculiar circumstances.
Ld. A.R has not been able to point out any provisions to the effect that Cenvat credit cannot be taken on machine procured prior to the date of issue of registration certificate. The argument of the lower authorities seems to be that the credit entries in the register for taking credit should not have been earlier than the date of granting of registration.
Firstly, there is a legal infirmity that tax is demanded under a category of service different from the one for which demand was initially issued. There is also the issue that Clearing and Forwarding Service could be rendered using a godown made available by the service recipient. In this case the service recipient has taken godown on rent from the service provider itself.
Appellate authority has not applied his own independent mind to various issues involved in the appeal and various contentions raised by the appellant. It stand simply observed by the appellate authority that all the issues stand discussed in detail by the adjudicating authority and he find himself in agreement with the same.
Delay in present case has occurred not account of any substantial and sufficient reasons but on account of negligence of the appellant. If such delays are condoned, the meaning of limitation of thee months provided by legislature in the Central Excise Act would become meaningless and redundant.
Installing projects of high technical equipment is nothing but Modernisation of a factory and as per Cenvat credit Rules, 2004, services used in relation to modernisation are eligible for Cenvat credit.
From a perusal of Rule 8 of the Cenvat Credit Rules, 2002 , it will be seen that the same is applicable in three circumstances – (1) when the manufacturer of the final products shifts his factory to another site, (2) the factory is transferred from the existing owner to the another person on account of change of ownership, and (3) the factory is transferred on account of merger, amalgamation, lease or transfer of the factory to a joint venture with specific provision for transfer of liabilities of such factory.
In this case of specific rate of duty, prima facie, the ‘ place of removal’ would be the ‘ place of removal’ for the purpose of Rule 4 of Central Excise Rules, i.e. the places on removal from where the duty is liable to be paid, which in this case, is the factory gate of Sonadih factory, as the duty on clinker becomes payable at the time of removal from Sonadih factory.
Appellant have already paid service tax from their Modvat credit, the deposit of the service tax collected from the buyers would amount to double payment. It may be noted that the proceedings are for confirmation of demand in terms of section 73A of the Finance Act which relates to the tax collected by an assessee from the buyers, which is not required to be collected.
Question whether the place where goods are stored after clearance from the factory on payment of duty can be considered as place of removal for the purpose of Rule 2(l) of Cenvat Credit Rules, 2004 is no longer res integra because of the clarification issued by the CBEC in the matter.
