COMMISSIONER OF SERVICE TAX Vs. IDEA CELLULAR LTD.
LAWS(CE)-2015-5-12
CUSTOMS EXCISE AND GOLD(CONTROL) APPELLATE TRIBUNAL
Decided on May 13,2015

COMMISSIONER OF SERVICE TAX Appellant
VERSUS
IDEA CELLULAR LTD. Respondents

JUDGEMENT

M.V.RAVINDRAN,MEMBER (J) - (1.)THIS appeal is filed by the Revenue against Order -in -Original No. 12/STC -1/BR/10 -11, dated 7 -6 -2010. Heard both sides and perused the record.
The relevant facts that arise for consideration are the appellant Revenue is aggrieved by the impugned order on the ground that the Adjudicating Authority has not confiscated the capital goods on which Cenvat credit was improperly availed.

(2.)IT is the case of the Revenue that the Adjudicating Authority having confirmed the demand holding that the respondent assessee is ineligible to avail the Cenvat credit of duty paid on tower material and pre -fabricated building/shelter should have confiscated the goods and allowed the same for redemption on payment of fine. It is the submission that the Adjudicating Authority has neither discussed the proposal of confiscation under Rule 15(1) of Cenvat Credit Rules, 2004 nor passed any order in respect of the same. It is the submission that after concluding that the credit was wrongly taken by reason of misdeclaration with intention to evade service tax, the Adjudicating Authority should have confiscated the capital goods.
(3.)WE find that the preposition as put forth by the ld. Departmental Representative as well as in the grounds of appeal are not in consonance with the law inasmuch as there is no dispute that the capital goods in which the Cenvat credit were availed were duty paid by the manufacturer. The respondent assessee had availed Cenvat credit of the duty paid by the manufacturer. We also find the provisions of Rule 15 on which reliance has been placed is also not applicable inasmuch, that against the very same Order -in -Original the assessee respondent was in appeal before the Bench and the Bench vide its final order dated 16 -3 -2015 as reported at, 2015 -TIOL -628 -CESTAT -MUM, has upheld the ineligibility to avail Cenvat credit within the period of limitation and set aside the demands raised beyond the period of limitation. It is also seen that the Bench had set aside the penalties imposed on all the appellants therein and more specifically the respondent in this case. When the main appellant's case itself is decided by setting aside the extended period of limitation and the penalties imposed, holding that this could be an issue of interpretation, the question of confiscation of the capital goods does not arise. In view of the foregoing, we hold that the impugned order to the extent it is contested before us is correct and legal and does not require any interference. The appeal filed by the Revenue is rejected.
(Operative part pronounced in Court)

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