IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL
REGIONAL BENCH : ALLAHABAD
COURT NO. I
Appeal No. ST/890/2012-CU[DB]
(Arising out of Order-in-Appeal No. 66/ST/ALLD/2012 dated 26/03/2012 passed by
Commissioner of Central Excise & Service Tax (Appeals), Allahabad)
M/s Purvanchal Gramin Bank,
Commissioner of Central Excise & Service Tax, Allahabad
Shri R. P. Mishra, Advocate, for Appellant
Shri Rajeev Ranjan, Additional Commissioner (AR), for Respondent
Hon’ble Mrs. Archana Wadhwa, Member (Judicial)
Hon’ble Mr. Anil G. Shakkarwar, Member (Technical)
Date of Hearing & Date of Decision : 19/06/2018
FINAL ORDER NO. 71147/2018
Per: Archana Wadhwa
After hearing both the sides, we find that the appellant is engaged in providing taxable services under the category of “Banking & Other Financial Services”. They were availing the Cenvat credit of Service Tax paid on various input services. During the period October, 2005 to September, 2009, they availed Credit to the tune of Rs.22.88 lakhs approximately.
2. The appellants were issued with a Show Cause Notice dated 17/08/2010 proposing to deny the said credit on the ground that they have not been able to produce the relevant documents for the purpose of availment of credit. During the course of adjudication, the appellant produced the Original Bills/Invoices as also attested copies for an amount of Rs.19,24,579/-. The same were accepted by the Original Adjudicating Authority and the credit was held admissible.
Further, as the appellant could not produce the Bills/Invoices for an amount of Rs.3,64,372/-, the credit to that extent was disallowed by the Original Adjudicating Authority alongwith imposition of penalty. The said order of the Original Adjudicating Authority was upheld by the Commissioner (Appeals) and hence, the present appeal.
3. The appellants had taken a categorical stands before the Authorities Below that credit was being availed by them on the basis of the Bills/Invoices so received by them. It is only that some of the Bills/Invoices got misplaced and could not be produced during the course of adjudication. They also assail the impugned confirmation of demand on limitation.
4. Lower Authorities have not been accepted their plea and have simplicitor rejected their stand by observing that as the appellant could not produce the documents, credit was not available. We agree that credit can be availed only on the basis of the eligible documents and if an assessee does not have the documents in their possession, the credit cannot be claimed by them. However, we find force in the appellant’s submission of demand being barred by limitation. Show Cause Notice issued on 17/08/2010 covers the period October, 2005 to September, 2009 and stands issued by invoking the longer period of limitation. However, we note that there is neither any allegation nor any evidence to suggest that the appellants had taken the said credit, with a mala-fide mind. The credit was availed by them, by reflecting the same in statutory records and was a part of the returns being filed by them. The appellant being in the Banking Sector, cannot be expected to indulge in such clandestine availment of small amounts of Cenvat credit, when they are dealing with the huge transactions and are paying huge taxes. As such, in the absence of any evidence to the contrary, it has to be held that there was no mala-fide on the part of the assessee so as to justifiably invoke the longer period of limitation. As such, we hold the demand to be barred by limitation.
5. At this stage, we find that a part of the demand may fall within the limitation period, for which purpose, we remand the matter to Original Adjudicating Authority for quantification of the same. We make it clear that penalties imposed on the appellant are also set aside.
6. Appeal is dismissed, in above manner.
(Dictated in Court)
(Anil G. Shakkarwar)