DEFENCE SUBMISSION : 16. The main grounds of the defence made in the noticee’s letter dated 20.09.2007 are as under.
The noticee has taken C.Ex. Registration No. AAECA3248FXM001 dated 15.12.03 and intimated the department about the implementation of the project hence the question of not informing the department has no merit. Also as per judgments given below, for invoking extended period ingredient of willful suppression, mis-declaration and intension to evade duty is must.
The noticee being Central Excise Registered manufacturer is entitled to avail CENVAT Credit of service tax paid/payable for input service, therefore, there is revenue neutral case. Hence provisions of extended period can not be invoked in the case, hence the demand it time-barred.
The contract was for sale of machineries and not for installation of the machineries. Installation is optional subject to payment of expense for lodging/boarding and pocket expense of the technician sent by the seller. They have not paid any amount towards installation. Also, as per records, out of contract amount USD 776350/-, only USD 3000 is for engineering. They have paid Customs duty and CVD considering value of machineries as USD 776350/- , thus no service tax can be levied on same amount as sale/purchase of the goods can not be treated as service and as both levies are Central Levy.
As they have produced Invoice/Bill of Entries evidencing value of goods, they are entitled benefit of Notification No. 12/2003-ST. referred case of Daelim Industrial Co. Ltd. Vs CCE Vadodara [ 2003(155) ELT 457 (Trib.)]
