Inox India Pvt Ltd Vs C.C.E. & S.T. (CESTAT Ahmedabad)
As regard the limitation, I find that there is no dispute that the appellant is availing the Cenvat credit and declaring in their monthly returns. The issue involved is also of interpretation of Cenvat Credit Rules and on this issue there are number of cases were made out by the department. In these circumstances it cannot be said that the appellant had a mala fide intention to evade the excise duty by taking the wrong credit. I do not find any suppression of fact or misstatement on the part of the appellant. Therefore, the demand for the extended period, if any, in this case will not sustain.
Accordingly, the demand for the extended period is set aside remaining demand may be re-quantified by the adjudicating authority and recovered the same from the appellant in accordance with law.
As per my above observation on limitation that the appellant had no intention to evade duty, the appellant is also not liable for penalty under rule 15(2) of Cenvat Credit Rule 2004 read with section 11 AC of the Central Excise Act 1944. Accordingly, the entire penalty involved in the present case is set aside.
FULL TEXT OF THE CESTAT AHMEDABAD ORDER
The issue involved in the present case is that whether the appellant is entitled for Cenvat credit of Service Tax paid on Outward Transportation Service for clearance of Excisable Goods by the appellant.
2. The Brief facts of the case is that the appellant raise the sale invoice in respect of sale of goods wherein after calculating the excise duty on the assessable value an amount of Rs. 45000/- was added and recovered from the buyer of the goods. On this freight the service tax was paid and the same was claimed as Cenvat Credit which is not in dispute in the present case.
3. Shri Dhaval K. Shah, Learned Counsel appearing on behalf of the appellant submits that the freight is included in the invoice value of the goods and the sale is on FOR basis therefore, the service tax paid on such transportation charges is admissible for Cenvat Credit. He referred to the sale invoice, contract with the buyers and CA Certificates. He submits that the price of the goods is on FOR Basis in support of the submission he placed reliance on the following judgments.
