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Letter issued by the Superintendent is not an appealable order issued by a competent authority. It is also recorded that since a show cause notice on the same issue has already been issued to the appellant herein, the outcome of such adjudication proceedings is an appealable order before higher judicial fora. Accordingly, I find that the first appellate authority was correct in rejecting the appeal filed by the assessee.
It is evident from the above account of the conduct of the two officials that they chose not to take proper steps at appropriate stage for filing the appeal even though they knew that it was their duty to do so. We have also noted that Mr. Prasad is totally remorseless in his affidavit. If the company loses this case it is because of his inaction. We nave already borne on record that we are not satisfied with the explanation offered in the COD application and the accompanying affidavits. Heavy delay of the appeal cannot be said to have been satisfactorily explained, particularly the delay from the first week of April 2012. The COD application is dismissed.
It is not in dispute that the show-cause notice invoked the extended period of limitation on the ground of suppression of facts with intent to avail undue CENVAT credit. The assessee did not choose to contest the demand on the ground of limitation, thereby virtually accepting the allegation of suppression. Their only grievance is against the penalty. The grounds for invoking the extended period of limitation are Indisputably identical to the grounds for invoking the section 11 AC. If that be so, where the demand has not been contested on the ground of limitation, it is not open to the assessee to oppose the section 11 AC penalty. In other words, where mens rea stands accepted in relation to the demand of duty, it has to be accepted by the assessee vis-a-vis the proposal for imposition of penalty under section 11AC. In the result, the penalty is unquestionable in this case.
Furthermore, reliance was also placed on the case of CST & STC v. Molex (India) Ltd. [2012] 18 taxmann.com 113 (Kar.), the Hon’ble High Court had held that supply of technical know-how cannot be taxed under “Consulting Engineering Service”. Therefore, the argument of Revenue to tax the supply of technical know-how under “Consulting Engineering service” was also rejected by the Hon’ble CESTAT.
The Hon’ble High Court of Bombay in the case of CCE v. Ultratech Cement Ltd. [2010] 29 STT 244 (Bom.) considered the issue at length and held that the definition of input service under Rule 2(l) of the Cenvat Credit Rules, is very wide and covers not only services which are directly or indirectly used in or in relation to the manufacturing of final product but also after manufacturing of the final products.
Hon’ble High Court of Mumbai in the case of CCE v. Ultratech Cements (P.) Ltd. [2010] 29 STT 244 held that any service availed by the assessee in or in relation to the business of manufacturing or providing output service is entitled to input service credit.
Hon’ble Supreme Court in the case of Sarvesh Refractories (P.) Ltd. v. CCE&C 2007 (218) ELT 488 has held that the issue of classification of the input/raw materials supplied by the input supplier cannot be questioned in the hands of input receiver while allowing Modvat/Cenvat credit.
The gist of the above averments is that the concerned person dealing with the matter in the appellant’s office received the orders and kept the same with him and forgot to hand it over to the appellant. The identity of “the concerned person dealing with the matter is not forthcoming. The appellant is a corporate entity and hence the concerned person dealing with the matter must be an employee of the company.
The second objection of the department is that the appellant do not satisfy the conditions no. 2(e) of 12/05 ST regarding non-availment of cenvat credit. The appellant’s plea from the very beginning has been that they have never availed cenvat credit either in respect of inputs or input services and that they have been claiming filing only the rebate in respect of input/input services from time to time and that in the ST-3 Return for October 2010 – March, 2011 the rebate claim had been mentioned as cenvat credit availed by mistake.
The Notification in question clearly requires an assessee to file refund claim on quarterly basis within a period of 60 days from the end of relevant quarter during which the goods stands exported. Such period prescribed by the notification cannot be extended by courts working within the parameters of the excise laws.
