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TMI Blog2010 (9) TMI 398X X X X Extracts X X X X X X X X Extracts X X X X ..... rvice provided even prior to actual rendering of the service - prima facie case has been made out by the appellants for grant of stay of the impugned order - ST/801/2009 - 741/2010 - Dated:- 6-9-2010 - Justice R.M.S. Khandeparkar, Shri P. Karthikeyan, JJ. REPRESENTED BY : Shri S. Ananthan, C.A. , for the Appellant. Ms. Sudha Koka, SDR for the Respondent. [Order per : Justice R.M.S. Khandeparkar, President]. Heard the ld. Chartered Accountant for the appellants and ld. DR for the respondent. The present application for stay has been filed in appeal arising from order dated26-6-2009passed by the Commissioner of Central Excise, Mangalore. By the impugned order, Commissioner has disallowed cenvat credit to the tun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of commission received in advance is contrary to the provisions of law relating to the service tax liability as such tax can be recovered only in relation to the services provided and not in relation to services yet to be provided. 3. Ld. Chartered Accountant, drawing our attention to the impugned order and another order passed by the Commissioner in relation to earlier period viz. period from October, 2005 to September, 2006 in another matter of the appellants, submitted that in the said case the Commissioner had given finding in favour of the appellants case on the basis of the certified accounts by the auditors whereas the report submitted by the appellants on the basis of the auditors certificate in the case in hand has been rejec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r also. 5. As far as the point relating to disallowance of the cenvat credit is concerned, the order passed for the earlier period by the Commissioner in relation to the appellants themselves discloses that in the similar facts situation though the proceedings were initiated for want of necessary documentary proof in support of the claim of cenvat credit, the Commissioner relied upon certificate of auditors and allowed the cenvat credit. In the case in hand also, the appellants had produced the audited certificate of the service tax statements and based on the said certificate, they had also furnished consolidated statement for the relevant period in relation to the credit availed and utilized. Undoubtedly in relation to the earlier perio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arter as the case may be. Ld. Chartered Accountant for the appellants has also drawn our attention to the fact that the said explanation ceased to be on the statute book from12th September, 2007. In any case, the explanation merely states that the service tax could not be collected prior to the period for which the service tax is rendered. Being so, it apparently lends support to the contention sought to be canvassed on behalf of the appellants. If that be so, prima facie, it is difficult to accept the contention of the Department that the commission paid in advance could be considered as the payment for the service provided even prior to actual rendering of the service. Needless to say that all the findings hereinabove are prima facie find ..... X X X X Extracts X X X X X X X X Extracts X X X X
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