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Bharti Airtel Ltd. Vs. C.C.E., Bangalore-I - (Customs, Excise and Service Tax Appellate Tribunal) (06 Apr 2021)

Mere suppression of facts is not sufficient to invoke extended period; there should be some positive Act on part of noticee to evade payment of duty


Service Tax

The Appellants, M/s. Bharti Airtel Ltd., are providers of taxable service under the category of Telephone/Telecommunications Services; an audit conducted by the Department for the period 10th September, 2004 to 30th September, 2006, it appeared that the Appellants have availed CENVAT credit on (i) Angles, Channels, Beams, MS Tower parts (SS Mats) etc. used in erection and installation of towers and on (ii) Pre-fabricated buildings/shelters/PUF panels used for housing/storage of generating sets and other components/equipments/spares etc. and the same was not available in terms of CENVAT Credit Rules.

CBEC vide Circular F. No. 137/315/2007-CX4 dated 7th December, 2007 held that, the activity of erection of towers does amount to manufacture and hence, credit is not available. SCN was issued seeking to deny the erroneous credit amounting to Rs. 7,89,56,288 and to impose penalty under Section 78 of the Finance Act and Rule 15(1) of the CCR, 2004. The same was confirmed by Order-in-Original which is subject of discussion in the appeal. The appellants submit that, the towers and prefabricated buildings on which CENVAT credit has been availed are capital goods and therefore, CENVAT credit is correctly availed.

In the instant case, demand pertains to period 10th September, 2004 to 30th September, 2006. Show cause Notice has been issued on 6th July, 2009, which is clearly beyond the period of limitation. Apex Court in the case of Pushpam Pharmaceuticals Vs. CCE has held that ,mere suppression of facts is not sufficient to invoke extended period; there should be some positive Act on the part of the noticee to evade payment of duty. Other than just mentioning that the assessee continued to avail and utilise credit, no evidence of any positive act by the Appellant has been brought out.

Hon'ble High Courts/Tribunals have consistently held that, extended period cannot be invoked under such circumstances and demands are barred by limitation. The demands are barred by limitation. Appeals allowed.

Relevant : Pushpam Pharmaceuticals Vs. CCE MANU/SC/1239/1995


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