LAWS(CE)-2014-11-56

BHARTI AIRTEL LTD. Vs. COMMISSIONER OF SERVICE TAX

Decided On November 20, 2014
BHARTI AIRTEL LTD. Appellant
V/S
COMMISSIONER OF SERVICE TAX Respondents

JUDGEMENT

(1.) THIS stay application along with appeal has been filed against order -in -original No. 19/SA/CCE/ST/2013, dated 25 -4 -2013 in terms of which Cenvat credit amounting to Rs. 142,72,26,906/ - was ordered to be recovered along with interest and penalty under Sections 77 and 78 of Finance Act, 1994 (read with Rule 15(4) of Cenvat Credit Rules, 2002). The issue involved in this case is admissibility of Cenvat credit on inputs and capital goods and input services used in the erection of transmission towers and shelters spread all over the country far from the office premises of the appellants. The adjudicating authority held the impugned Cenvat credit to be inadmissible and also held the appellants guilty of wilful misstatement/suppression of facts. The appellants have contended that the period involved in this case is September 2004 to January 2008 and the show cause notice was issued on 22 -4 -2010. They have been submitting their periodical returns regularly giving all the required details therein. In the said returns, the impugned credit was duly reflected. They asserted that there has been no wilful misstatement or suppression of facts on their part and there were judgments of CESTAT which allowed such credit. It is only after CESTAT judgment in Vandana Global v. C.C.E. - 2010 -TIOL -624 -CESTAT -DEL (LB) - : 2010 (253) E.L.T. 440 (Tri. - LB.) that the position acquired a degree of clarity. They argued that the entire demand is barred by time.

(2.) THE ld. AR strenuously argued that they deliberately took the impugned Cenvat credit knowing fully well that the same was not admissible. She said that they had taken centralised registration as late as in 2000 and therefore the period for limitation should be counted therefrom. She also said that they were asked for the break up the Cenvat credit details and on 19 -4 -2010 they answered that they will not be able to provide the same and that this showed wilful suppression on their part. The ld. Advocate at this point stated that the Revenue sought the break up of figures on 16 -4 -2010 and on 19 -4 -2010 they said they will take some time to prepare the same and the show cause notice was issued on 22 -4 -2010. We have considered the submissions of both sides. The appellants are not contesting the issue on merit but have made a strong plea that there has been no suppression or wilful misstatement on their part. We find that in the show cause notice only the following sentences in paras 12 and 13 elaborate/deal with this allegation:

(3.) INDEPENDENTLY also, it is seen that there is no mention in the show cause notice that the party did not tell/declare to the department what was legally required to be told/declared. Similarly there is also no mention in the show cause notice or in the impugned order as to what did they misdeclare to the department. On the other hand, the appellants have claimed that they had been submitting periodical returns clearly showing therein the impugned credits. They were even regularly audited by the department. The contention of the ld. AR that they took centralised registration with effect from 1 -10 -2009 and therefore, the period of limitation should be counted therefrom is devoid of any basis because it is not the Revenue's case that prior to centralised registration they were not registered at various places and were not complying with the requirements of filing periodical returns relating to, and disclosing the availment of, the impugned credit.