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ST – When the issue is of interpretation of law and all facts were within the knowledge of department, extended period of limitation cannot be invoked: CESTAT

2019-TIOL-2301-CESTAT-MUM

IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL
REGIONAL BENCH, MUMBAI
COURT NO. I

Appeal No. ST/86409/2015
with Application No. ST/CROSS/91220/2015

Arising out of Order-in-Original No.03/STC-IV/SKS/14-15, Dated: 13.03.2015
Passed by the Commissioner of Service Tax – IV, Mumbai

Date of Hearing: 13.06.2019
Date of Decision: 13.06.2019

PRINCIPAL COMMISSIONER OF SERVICE TAX-IV
CENTRAL EXCISE BUILDING, 115, M.K. ROAD
CHURCHGATE, MUMBAI – 400020

Vs

M/s ICICI BANK LTD
ICICI TOWERS, BANDRA KURLA COMPLEX
BANDRA (EAST), MUMBAI – 400051

Appellant Rep by: Shri Narendra Dave, Adv.
Respondent Rep by: Shri Roopam Kapoor, Pr. Commr. (AR)

CORAM: D M Misra, Member (J)
P Anjani Kumar, Member (T)

ST – Commissioner disallowed the CENVAT Credit availed and utilized of the Service Tax on the premium paid against deposit insurance to DICGC by the noticee to the extent of Rs.30,10,85,494/-, however, dropped the demand for the extended period of limitation amounting to Rs.10,27,75,834/- – Revenue in appeal before CESTAT.

Held: In the asseesses own case, Tribunal had held that CENVAT Credit of the Service Tax on the premium paid against deposit insurance to DICGC is inadmissible, however, is was observed that the issue involved since is pure question of law, imposition of penalty is unwarranted – Following the said precedent, Bench is of the view that when the issue is of interpretation of law and all the facts were within the knowledge of the department being disclosed to the Department, extended period of limitation cannot be invoked alleging suppression, mis-declaration etc. – Revenue’s appeal, being devoid of merit, is rejected: CESTAT [para 5, 6]

Appeal rejected

Case law cited:

ICICI Bank Ltd Vs CST – 2019-TIOL-589-CESTAT-MUM… Para 3

FINAL ORDER NO. A/86113/2019

Per: D M Misra:

This is an appeal filed against Order-in-Original No.03/STCIV/ SKS/14-15, dt.13.03.2015, passed by the Commissioner of Service Tax – IV, Mumbai.

2. Revenue is in appeal assailing the impugned order of the learned Commissioner on the ground that even though in the impugned order, the learned Commissioner disallowed the CENVAT Credit availed and utilized by the noticee to the extent of Rs.30,10,85,494/-, however, dropped the demand for the extended period of limitation amounting to Rs.10,27,75,834/-.

3. The learned Advocate for the Respondent has submitted that this Tribunal in the case of ICICI Bank Ltd Vs CST – 2019-TIOL-589-CESTAT-MUM, though on merit held that the Assessee is not entitled to the credit, interpreting the provisions of CENVAT Credit Rules, but observed that since there has been lot of changes in the CENVAT Credit provisions during the relevant period, penal provisions cannot be attracted. It is his contention that therefore extended period cannot be invoked and the learned Commissioner has rightly restricted the demand for normal period.

4. The learned A.R. for the Revenue reiterates the grounds of appeal.

5. We have carefully considered the submissions advanced by both sides. The limited issue for determination is whether the extended period of limitation can be invoked for recovery of the CENVAT Credit. In the aforesaid judgment, in the Respondent’s own case, it is observed by this Tribunal that CENVAT Credit of the Service Tax on the premium paid against deposit insurance to DICGC is inadmissible. However, it is further observed that the issue involved since is pure question of law, accordingly imposition of penalty is unwarranted. Following the said precedent, we are of the view that when the issue is of interpretation of law and all the facts were within the knowledge of the department being disclosed to the Department, extended period of limitation cannot be invoked alleging suppression, mis-declaration etc.

6. In the result, Revenue’s appeal being devoid of merit, accordingly rejected. Cross objection disposed off.

(Operative part of the order pronounced in the open court)

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