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TMI Blog2013 (12) TMI 1474X X X X Extracts X X X X X X X X Extracts X X X X ..... the Cenvat credit availed as wrong which has culminated in confirmation of the demand for Cenvat credit availed along with interest. Penalty also has been imposed. 2. Even though only stay application has been listed, considerable time was spent in arguments by both sides and detailed submissions were made especially on the preceding decisions of Hon'ble High Courts of Gujarat and Punjab and Haryana. Further, I was also taken through the contract between the parties and details as regards facts. After spending so much time in hearing both sides, I consider it appropriate that the matter itself should be finally decided rather than posting it to a future date. Accordingly requirement of pre-deposit is waived and appeal is taken up for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a Overseas [2012 (25) S.T.R. 348 (P&H)]. He also submitted that in the case of Cadila Health Care Ltd. (supra), Hon'ble Gujarat High Court came to the conclusion that the benefit of Cenvat credit was not admissible in view of the fact that in that case there was no evidence whatsoever relied by the appellants. In fact in sub-para 8 of para 5.2, Hon'ble High Court observed "However there is nothing to indicate that such commission agents were actually involved in any sales promotion activities as envisaged under the said expression...." Therefore, it is his submission that the conclusion of Hon'ble High Court indicated that the commission agents in that case were only acting as simply commission agents there was no evidence to indicate that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... umstances of this case. Therefore, on merits, I consider that the appellants have been able to make out a case. Even though it was submitted by the learned A.R. that the Commissioner (Appeals) has not discussed the merits and therefore matter may be remanded, I find that in the facts and circumstances of this case, it may not be appropriate and it is not advisable also since that would increase the workload of everybody and increase litigation. 5. Coming to the deficiency in the documents, I observe that while applying the provisions of the Statute, officers seem to ignore important aspects. In para 15 of the Order-in-Original, the original authority observed "sub-rule (2) of Rule 9 of Cenvat Credit Rules, 2004, the bill/invoices shal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore me, I find that full name and address of the service receiver, the nature of service provided, Registration No. of the service provider, amount of Service Tax paid for the service rendered and address of the issuer are available in the invoice. At least I could not make out any deficiency in the invoice. The Assistant Commissioner made a categorical observation that above mentioned particulars, meaning thereby, name and address of the person receiving taxable service, description and classification of taxable service are not forthcoming on the invoice. The only basis this objection can be upheld is that photocopy submitted by the appellant cannot be relied upon. Unfortunately, the Assistant Commissioner does not even say that he has ver ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court has already taken a view to the effect that to invoke suppression facts, suppression of facts should be such that they should be ones which are required to be declared in accordance with Statute before the Statutory Authorities. When a document on the basis of which credit was taken is not required to be produced, how suppression of facts can be invoked and on what basis defies imagination. In any case, I find considerable force in the arguments advanced by the learned counsel that before a decision in the case of Cadila Healthcare (supra) by Hon'ble Gujarat High Court was rendered, there was a view prevailing that credit is admissible in respect of service rendered by commission agent. In fact, there is a Circular issued by the Board ..... X X X X Extracts X X X X X X X X Extracts X X X X
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