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TMI Blog2012 (11) TMI 955X X X X Extracts X X X X X X X X Extracts X X X X ..... tered and paying service tax under 'telephone services'. Appellant was receiving various input services and availing Service Tax Credit on the same in terms of Service Tax Credit Rules, 2002 (hereinafter referred to as 'the Rules of 2002'). The appellant was also receiving roaming (National & International) charges from other telecom operators. Roaming charges were paid by the home operator (telecom operator with whom the subscriber is registered) to the service operator (telecom operator whose network the subscriber of the home operator is visiting). Thus, the appellant has received roaming charges from various other operators towards roaming facility provided by the former to the subscribers of the latter while on visit to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bunal. The Tribunal has remanded the case to the original authority for re-quantification of demand after considering the excess/short utilization of credit in each half yearly return period, instead of monthly basis. So far as restriction of Cenvat credit to the extent of 35% was concerned, it was not disputed being covered by virtue of decision of the Tribunal in Idea Cellular Ltd. v. CCE [2009] 19 STT 423 (New Delhi - CESTAT) Visiting network service is exempted for which admissibility of Cenvat credit shall be limited to 35% in respect of each return period when Cenvat credit is claimed for set off. Accordingly, liability of the appellant was ordered to be recalculated giving set off on Cenvat credit limiting to 35% in respect of each r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t case stands settled by the decision of the Tribunal in the case of Idea Cellular Ltd. (supra), that part of the order has not been questioned; penalty part has been questioned. 5. After hearing learned counsel for the appellant at length, it is clear that in case the service provider opts not to maintain separate accounts of inputs service meant for consumption in relation to rendering of such services which are chargeable to service tax as well as exempted services or non-taxable services, he shall be allowed to utilize service tax credit for payment of service tax on any output service only to the extent of an amount not exceeding 35% of the amount of service tax payable on such output service. Since the appellant was providing taxable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... agent, the provisions of this sub-section shall have effect, as if, for the words "one year", the words "five years" had been substituted, so as to initiate the proceedings to pay the amount specified in a notice. Thus, service of notice within five years from the relevant date is sustainable in law. It is apparent that excess credit was utilized by the appellant to the extent of Rs. 35,99,882/- from May 2003 to August 2004. Finding has been recorded by the Additional Commissioner that the assessee has contravened the provisions of Section 68 of the Act read with Rule 6 of Service Tax Rules, 1994 and Rules 3 and 4 of the Rules of 2002 by such wrongful availment and utilization of Cenvat credit. Therefore, the assessee is liable for penalty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns. Thus, it has been held to be a case of wilful suppression. Finding recorded by the Tribunal in para 7 of its order is quoted below. "7. So far as levy of penalty is concerned the case of the appellant is that Cenvat credit of a higher amount was unduly claimed. Sample copy of the return is available in appeal folder at page 23 of the paper book. That nowhere discloses bona fide of the appellant. Had the appellant disclosed that it was under bonafide belief that service provided by the appellants as visiting network service provider was exempt and not taxable, the appellant would have clearly guided the department to understand its claim on set off Cenvat credit. Failure to make such disclosure in return or submitting entire fact by any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lant has relied upon decision of Hon'ble Supreme Court in Continental Foundation JT. Venture v. CCE 2007 (216) E.L.T. 177 (S.C.), in which expression "suppression" has been considered thus: "10. The expression "suppression" has been used in the proviso to Section 11A of the Act accompanied by very strong words as 'fraud' or "collusion" and, therefore, has to be construed strictly. Mere omission to give correct information is not suppression of facts unless it was deliberate to stop the payment of duty. Suppression means failure to disclose full information with the intent to evade payment of duty. When the facts are known to both the parties, omission by one party to do what he might have done would not render it suppression. W ..... X X X X Extracts X X X X X X X X Extracts X X X X
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