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TMI Blog2010 (5) TMI 230X X X X Extracts X X X X X X X X Extracts X X X X ..... . - E/3020/2009 - 376/2010-EX(PB), - Dated:- 14-5-2010 - Justice R.M.S. Khandeparkar, President and Shri Rakesh Kumar, Member (T) Shri R.S. Tandon, Advocate, for the Appellant. Shri Virendra Choudhary, DR, for the Respondent. [Order per : Rakesh Kumar, Member (T)]. - This is an application for waiver from the requirement of pre-deposit of Cenvat credit demand of Rs. 47,39,748/- confirmed against the appellant vide Order-in-Appeal No. 216/MA/GGN/09 dated 21-8-09 passed by Commissioner, Central Excise (Appeals), Delhi - III, Gurgaon and also for stay on its recovery till the disposal of the appeal. The facts leading to this appeal and the stay applications are, in brief, as under. 1.1 The appellant are engaged in the man ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce the demand show cause notice was issued on 10-9-07 for recovery of allegedly wrongly taken Cenvat credit during the period from 2005-2006 and 2006-2007, the show cause notice invoked longer limitation period under proviso to Section 11A (1) of the Central Excise Act alleging that the appellant had suppressed the relevant information about the service tax credit availed by them. The show cause notice was adjudicated by the Additional Commissioner vide Order-in-Original dated 19-11-08 by which the Additional Commissioner dropped the proceedings initiated against the appellant vide show cause notice dated 10-9-07. This order of the Additional Commissioner was reviewed by the Commissioner and on the Commissioner's directions, the Adjudicati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provisions of the Finance Act, 1994 shall apply, that though the appellant had paid the service tax in respect of the service received by them for a foreign service provider, by virtue of Section 66A they have to be treated as deemed service provider in India and since this service had been used as input by the appellant, they would be eligible for Cenvat credit and that the impugned order is, therefore, is totally incorrect. He, therefore, pleaded that the appellant have a strong prima facie case and, therefore, the requirement of pre-deposit of Cenvat credit demand and interest may be waived for hearing of the appeal. 2.2 Shri V. Choudhary, the learned DR, opposed the appellant's plea for waiver from the requirement of pre-deposit of Ce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 66A of the Finance Act, 1994 provides that where any service specified in Clause 105 of Section 65 has been provided by a foreign service provider not having any office or establishment in India, such service shall be a taxable service and such taxable service shall be treated as if the recipient had himself provided the service in India and all the provisions of this chapter shall apply. Thus, in case of import of .taxable service, that is receipt of a taxable service by a person in India from a foreign service provider, such service would be treated as taxable service in India, as if the same had been provided by the service recipient in India. Once the service recipient by the legal fiction of Section 66A becomes service provider, the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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