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TMI Blog2015 (10) TMI 1855X X X X Extracts X X X X X X X X Extracts X X X X ..... put services for the assessee but also because the output service of the appellant assessee was not taxable including under Business Auxiliary Service - Penalty under Section 76 cannot be sustained as no service tax is held to be payable by the assessee as per Section 68 ibid – Cenvat Credit inadmissible and recoverable and penalty imposed as such ₹ 2,000/- under Rule 15 (3) ibid – Decided in favour of Revenue. - APPEAL NO. ST/543 OF 2009 & 804 OF 2010 - FINAL ORDER NO. 52725-52726 OF 2015 - Dated:- 14-8-2015 - SHRI G. RAGHURAM AND SHRI R.K. SINGH, JJ. For The Appellant : Shri S.S. Dabas, Advocate For The Respondent : Smt. Suchitra Sharma, Authorized Representative (Jt. CDR) ORDER Per. R.K. Singh :- The a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e assessee was allegedly providing Business Auxiliary Service to M/s Aircel Digilink India Ltd. Co. in the form of providing/selling SIM Cards/recharge coupons and was receiving commission for the same, but did not pay service tax under Business Auxiliary Service. It also took Cenvat credit amounting to ₹ 1,10,105/- during the period 10/02/2005 to September 2005 and ₹ 5,75,496/- during the period October 2005, to March, 2006. This credit was taken in respect of service tax paid by M/s Aircel Digilink India Ltd. Co. The primary Adjudicating Authority held that the assessee was not receiving any service from M/s Aircel Digilink India Ltd. Co., and therefore, the service tax paid by the latter was not admissible to the assessee. Am ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e was not admissible on the ground that this credit was taken in respect of services which were not input services for the assessee. The assessee filed an appeal before CESTAT against the said order and CESTAT vide order dated 19/08/2008 passed the following order :- As we find that the original authority has decided the issue of taxability also and since the issue is at the root of the dispute, we direct that this issue should also be decided by the Commissioner (Appeals) and to enable this, we set aside the order of the Commissioner (Appeals) and remand the matter for fresh consideration after affording a reasonable opportunity of hearing to the appellant. The appeal is allowed by way of remand. Stay petition is also disposed of. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... see under Business Auxiliary Service is concerned. 8. As regards the appeal of the assessee against the Order-in-Revision, it is evident that the commission was received by the appellant/assessee from M/s Aircel Digilink India Ltd. Co. M/s Aircel Digilink India Ltd. Co. did not provide any service to the appellant/ assessee nor did the appellant/assessee make any payment to M/s Aircel Digilink India Ltd. Co. Service tax was paid by M/s Aircel Digilink India Ltd. Co. on its output services (telephone services) which were not provided to the appellant/assessee. Thus, the service tax paid by M/s Aircel Digilink India Ltd. Co. was on services which were clearly neither provided to the appellant/assessee nor were eligible to be called input s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der-in-Revision cannot be sustained. 9. Thus the net essence of the outcome of this legal trajectory is that the impugned Cenvat credit is inadmissible not only because the services on which it was taken were not input services for the assessee but also because the output service of the appellant assessee was not taxable including under Business Auxiliary Service. However, the penalty sought to be imposed in the show cause notice was under Section 76 ibid and Rule 15 (3) of Cenvat Credit Rules. But penalty under Section 76 ibid is leviable only if a person fails to pay service tax it is liable to pay in accordance with the provisions of Section 68 or the rules made in that regard and therefore penalty under Section 76 in this case cannot ..... X X X X Extracts X X X X X X X X Extracts X X X X
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