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TMI Blog2017 (8) TMI 1118X X X X Extracts X X X X X X X X Extracts X X X X ..... nder reverse charge mechanism after 18.04.2006 in terms of Rule 3 of Cenvat Credit Rules, 2004 or not? - Held that: - the Finance Act, 2011 has got amended with retrospective effect i.e. from 18.04.2006 which provide the appellant is entitled to avail credit under Rule 3 of CCR, 2004. In that circumstance, the appellant is entitled to avail credit with effect from 18.04.2006 on the service tax paid under reverse charge mechanism under Rule 3 of CCR, 2004. Appeal allowed - decided in favor of appellant. - ST/52125/20114 - A/61543/2017-CU[DB] - Dated:- 4-8-2017 - Mr. Ashok Jindal, Member (Judicial) And Mr.Devender Singh, Member (Technical) For the Appellant : Shri Amarinder Singh, Advocate For the Respondent : Shri G.M.Sharma, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on, in view of the decision of Hon'ble Bombay High Court in the case of Indian National Ship Owners Association - 2009 (13) STR 235 (Bom) wherein it has been held that prior to 18.4.2006, the charging section was not in the statute book, therefore, the service tax is not payable prior to 18.04.2006. Section 66A has been introduced from 18.04.2006 which is the charging section for levy of service tax. Therefore, prior to 18.04.2006, all recipients of services from abroad are not liable to pay service tax under reverse charge mechanism. The Revenue is of the view that as the Section 66A was not enacted in the Finance Act, the appellant was not entitled to take credit under Rule 3 of Cenvat Credit Rules, 2004. He submits that as per F ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... x under section 66 although the same was not charging section and Rule 3 of Cenvat Credit Rules, 2004 provided availability of credit of service tax paid on under section 66 of the Finance Act. Therefore, the appellant is entitled to avail credit. During the course of arguments, the issue raised by the learned AR as section 66 of the Finance Act was not charging section and the levy of service tax has been declared ultra vires, therefore, for the period prior to 18.04.2006, the appellant was not required to pay service tax under reverse charge mechanism. Therefore, when they are not required to pay service tax, they are not entitled to avail credit. We find that to that CBEC has issued clarification on 16.07.2009 which reads as under: ..... X X X X Extracts X X X X X X X X Extracts X X X X
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