9911796707
TMI Blog2014 (10) TMI 717X X X X Extracts X X X X X X X X Extracts X X X X ..... te. The facts and circumstances leading to the filing of the present appeal are narrated briefly for easy reference. 1.2. The appellant inter alia is receiving services from certain foreign companies and have been remitting foreign exchange for the same. The Parliament introduced levy of service tax under Section 66A i.e. reverse charge mechanism effective from 18.04.2006. Pursuant to audit observations and direction of the department, the appellant paid service tax of Rs. 43, 29,644/- in respect of services received by the appellant prior to 10.09.2004. 1.3. As the appellant had paid service tax at the insistence of the Department audit observations and the services in question was an eligible input service, the appellant took CENVAT cre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bangalore. The ld. Commissioner (Appeals) thereafter passed OIA No. 16/2010 dated 30.04.2010 and set aside the adjudication order No. 106/2009 dated 30.09.2009. 1.6. As a consequence of the setting aside of the adjudication order dated 30.09.2009 by the First Appellate Authority, the appellant was entitled for refund of amounts already paid by them including the interest paid thereon. The department issued a letter dated 09.03.2011 to the appellant asking them about whether any suo moto credit was taken as a result of allowing of appeal by the Commissioner (Appeals). The appellant answered in the positive and informed that they took credit of wrongly paid and appropriated in the adjudication order dated 30.09.2009 pursuant to allowing of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Having made them pay the amount, they were asked to pay the amount with interest which they paid under protest. While vacating the protest, not only the protest was vacated but even penalty was imposed. Thereafter when the appeal filed by them was allowed, when they took suo moto credit, proceedings were initiated for recovery of suo moto credit availed by them. The issue before us is the denial of suo moto credit availed by them and proposed recovery of the same. In this case it has to be noted even if the credit is reversed now, the appellant can file a refund claim because what they would be claiming is the amount which is reversed as per the directions of the Commissioner. Therefore if the impugned order is upheld, we would be startin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee should function. Whom should he approach for advice and question also arises whether obeying the direction of the department itself is not correct and assessee should always use his own wisdom and act accordingly and take the consequence. In our opinion when service tax was not liable to be paid, assessee should not have been made to pay. Having made them to pay, credit should have been allowed gracefully. Having denied the credit, when they won the appeal, they should have been advised to reverse the suo moto credit taken and file a refund claim which they would have done since when department wrote a letter asking them whether they have taken suo moto credit, time was still available for filing refund claim. When advice was give ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
