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TMI Blog2014 (2) TMI 619X X X X Extracts X X X X X X X X Extracts X X X X ..... Cenvat Credit and non-paid service tax nor the penal provisions of Section 11 AC of the Central Excise Act, 1944 or of the Section 78 of the Finance Act would be attracted. - Demand set aside - Decided in favor of assessee. - Appeal No.ST/600 / 2008-CU (DB) - Final Order No:- 50323/2014 - Dated:- 22-1-2014 - Shri G. Raghuram and Shri Rakesh Kumar, JJ. For the Appellant : Shri R. Santhanam, Advocate For the Respondent : Shri Ranjana Jha, Joint CDR JUDGEMENT Per Rakesh Kumar: The appellant have service tax registration with the jurisdictional central excise authorities for providing scientific and technical consultancy service and also for Goods Transport Agency Service. They are a merchant exporter and have an agreeme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m under Section 11 AC. The show cause notice dated 17.1.2008 was adjudicated by the Assistant Commissioner vide order-in-original dated 11.03.2008 by which the Cenvat Credit demand of Rs.96,351/- and service tax demand of Rs.41,999/- were confirmed along with interest and besides this, penalty of Rs.1,38,350/- was imposed under Section 11 AC of Central Excise Act, 1944, another penalty of Rs.2,76,700 was imposed on them under Section 78 of the Finance Act, 1994. On appeal being filed to the Commissioner (Appeals) against this order of the Assistant Commissioner , the Commissioner (Appeals) vide order-in-appeal dated 27.06.2008 dismissed the appeal. Against this order of the Commissioner (Appeals), this appeal has been filed. 2. Heard both ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cise Act and Section 78 of the Finance Act, 1994 would not be sustainable. He, therefore, pleaded that the impugned order is not sustainable. 4. Ms. Ranjana Jha, ld. Joint CDR, defended the impugned order by reiterating the findings of the Commissioner (Appeals) and emphasized that the activity of the appellant procuring raw materials, getting the finished goods manufactured through ICI India Ltd and thereafter exporting the finished goods was in the nature of the trading activity, that the GTA service availed for inward transportation of the inputs was in respect of their trading activities and hence, they were not eligible for Cenvat Credit in respect of the GTA service received by them, that in terms of the provisions of Rule 3(1) of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... exporting them has to be treated as trading activity, and since the GTA service has been used entirely in respect of the trading activity, they would not be eligible for Cenvat Credit in respect of the GTA Service and as such, the Cenvat Credit availed in respect of the GTA services received by them and its utilization is incorrect. However, we find that availment of Cenvat Credit in respect of GTA services and its utilization for payment of service tax on scientific technical consultancy service has been disclosed by them in their ST-3 Returns, they cannot be accused of having suppressed any relevant facts from the department. In view of this, neither the extended period under proviso to Section 11A(1) of the Central Excise Act, 1944 an ..... X X X X Extracts X X X X X X X X Extracts X X X X
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