[Order per : Archana Wadhwa, Member (J)]. - The appeal is being decided in pursuance to order of Hon’ble Gujarat High Court vide which the matter stand remanded to the Tribunal for fresh consideration on the point of limitation and penalty. Accordingly, we have heard the learned advocate Shri Willingdon Christian, appearing for the appellant and Shri R.S. Sangia, learned SDR appearing for the Revenue.
2. As per facts on record, the appellant, who is holding service tax registration as “Input service Distributor” availed the benefit of Cenvat Credit in respect of input services such as maintenance and repairs services, security services etc. used at the site of installation of their Wind Turbine Generators (WTG) for generating electricity. The Cenvat Credit availed in respect of such input services were being distributed to their manufacturing unit located at Nandesari for utilizing the same towards payment of duty on excisable goods manufactured by them. As the Revenue entertained a view that such availment of credit of input services used at the site of WTG which were installed away from the factory premises of the appellant, was not available inasmuch as the electricity so generated from the WTG was not liable to tax, they issued a show cause notice on 17-12-07, proposing to deny Modvat Credit of Rs. 5,40,148/- availed by the appellant during the period 10-9-04 to 31-12-06.
3. The said show cause notice was adjudicated by the Assistant Commissioner confirming demand along with interest and imposing penalty of equal amount under Rule 15 of Cenvat Credit Rules, 2004. Further, penalty of Rs. 1,40,000/- was imposed under Rule 26 of Central Excise Rules, 2002. Order of the original adjudicating authority was confirmed by Commissioner (Appeals). Hence, the present appeal.
4. Learned advocate Shri Willingdon Christian, appearing for the appellant has fairly agreed that the issue on merit stand decided against them by the Tribunal in case of Rajhans Metals Pvt. Ltd. v. CCE, Rajkot as reported in (Tri.-AHD) as also in the case of Atul Auto v. CCE, Rajkot being Order No. A/332/WZB/AHD/08, dated 29-2-08 [ (T)]. In fact, submits the learned advocate that the matter was challenged before Commissioner (Appeals) only on the issue of limitation and penalty. He submits that the same very judgment of the Tribunal in case of Rajhans Metals (P) Ltd., which stand relied upon by the Commissioner (Appeals) in his impugned order, has observed that as the issue involved is of legal interpretation, no mala fide can be attributed to the appellant and as such, the penalty stand set aside. He submits that the basis for invocation of longer period and for imposition of penalty are identical. In both cases, mala fide on the part of the assessee is required to be established. As such, the observations made by the Tribunal in case of Rajhans Metals (P) Ltd. was applicable so as to hold non-availability of longer period of limitation. Inasmuch as the Tribunal in case of Rajhans Metals (P) Ltd. has observed that the issue is of legal interpretation and does not call for any imposition of penalty, by adopting the same reasoning, the longer period cannot be invoked against them.
5. Learned SDR Shri R.S. Sangis, appearing on behalf of the Revenue, who has reiterated the reasoning of the Commissioner (Appeals) for invocation of longer period of limitation, has drawn our attention to Para 5.7 of the Commissioner (Appeals)’s order. For better appreciation, we reproduce the same.
“5.7 With regard to the issue regarding invocation of extended period, the appellants have contended that the demand invoking the extended period was not sustainable as the entire issue was one of interpretation of the Cenvat Credit Rules and that the ingredients for invoking penal provisions did not exist in the case. On consideration, I find that the appellants’ plea that this was a case of interpretation of the legal provisions is not tenable as the relevant provisions of the Cenvat Credit Rules, 2004, as discussed above, are quite clear viz. that credit can be taken on any “input service” only if they are used in or in relation to the manufacture of the final product or for any other purpose within the factory of production whereas in this case, the services were used at Wind Turbine Generator for generating electricity, which is exempted from duty, at a site outside the factory premises. Thus, there is no scope for a different interpretation. Moreover, under the Self-Assessment Scheme, it is obligatory on the assessee to remove the goods on proper payment of Central Excise duty and to ensure correct availment of Cenvat Credit in accordance with the Rules which the appellants have failed to honour. The wrong availment of credit came to light only after it was detected by the Department and investigated. In view of the above, I hold that the larger period of limitation under Rule 14 of the Cenvat Credit Rules, 2004 has been correctly invoked in the present case and the show cause cum demand notice invoking the extended period is in order. Accordingly, the appellants are liable to pay the demand of Rs. 5,40,148/- along with interest. For the said reasons, the appellants are also liable to penalty equal to the wrongly availed Cenvat Credit of Rs. 5,40,148/- under Rule 15 of Cenvat Credit Rules, 2004.”
6. As is seen from the above, longer period of limitation invoked by the Commissioner (Appeals) on the ground that in the self-assessment scheme, it is obligatory on the part of the assessee to ensure correct availment of credit. It has further been observed that the relevant provisions of Cenvat Credit Rules are quite clear and there is no scope of different interpretation. However, we find that as per the settled law on the issue, longer period of limitation can be invoked only when there is positive suppression or mis-statement on the part of the assessee. The credit, in the present case, was availed by the appellant on the basis of statutory documents and with the knowledge of the department. Can under these circumstances, it be held that there was suppression on the part of assessee. No such suppression also stands attributed by the Commissioner (Appeals) in her impugned order. There is also no reference to any mis-statement of facts or otherwise. Merely because the legal interpretation, according to the appellate authority, was clear and without any scope of doubt, the same cannot be made reason for invoking longer period. The legal interpretation of any provisions are capable of two different interpretations and if the assessee has interpreted the same to his benefit, it cannot be said that there was any suppression or mala fide on his part. We also note that not only the present applicant but also all other assessess similarly situate were availing benefit of Modvat Credit in respect of input services availed at the site of generators and were using same for clearance of the goods at the factory situated away from the generator site. This fact becomes clear from the Tribunal’s decision in case of Rajhans Metals Pvt. Ltd. and other judgment in case of Atul Auto Ltd. It is in the light of the decision of the Tribunal that such availment of service was held to be not admissible. Can under these circumstances, the appellant be held guilty of any suppression or mis-statement so as to invoke longer period. In fact, the Tribunal, while deciding the issue on merit against the appellant in case of Rajhans Metals Pvt. Ltd., has itself observed that the issue involved is of legal interpretation of the provisions and as such does not call for any penalty If that is so, the appellants cannot be alleged to have positively suppression or mis-stated any fact so as to invoke longer period. Inasmuch as the demand, in the present case, stand issued on 17-10-07, for the period from 10-9-04 to 31-10-06, i.e. beyond the normal limitation period, we are of the view that majority part of the demand is hit by limitation. For the same reason and by following the decision of the Tribunal in case of Rajhans Metals Pvt. Ltd., we are of the view that penalty cannot be imposed upon the appellant.
6. Inasmuch as a part of the demand is within limitation period, we direct the original adjudicating authority to quantify the same for which purposes, we remand the matter.
7. Appeal is disposed off in above terms.
(Pronounced in Court)