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TMI Blog2017 (12) TMI 1190X X X X Extracts X X X X X X X X Extracts X X X X ..... envat credit to them remains to be verified against their service tax liability which has not been verified by the revenue. In such case if the Appellant is able to show that they had received cenvat credit charged from their suppliers which utilized for payment of their service tax liability in that case there cannot be any demand against the Appellant - case remanded to the original authority for denovo consideration - appeal allowed by way of remand. - ST/88190 & 88798/13 - A/90724-90725/17/STB - Dated:- 13-11-2017 - Shri Ramesh Nair, Member ( Judicial ) And Shri Raju, Member ( Technical ) Shri Shrenik Gandhi, C.A. for Appellant/Respondent Shri A.Sharma, Asstt. Commr. (A.R) for Appellant/respondent ORDER Per : Ram ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ackaged or canned software for the period 01.04.2016 to 15.05.2008 and 27.02.2010 to 31.03.2011 does not fall under the category of taxable service i.e Information Technology and Software Services and that the Appellant should deposit the amount with the central government which was recovered from the customers representing service tax in terms of Section 73A(2) of the act. He further held that for the period 16.05.2008 to 26.02.2010 the Appellants activity of trading packaged or canned software was taxable under the category of Information Technology and software service and liable to tax under section 73 (1) of chapter V of the Finance Act. He also confirmed demand of interest under Section 75 and section 73 B and penalty equivalent in te ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ability cannot be fastened upon them. He relies upon the judgments in case of T RIVENI SPINING MILLS (P) LTD. Vs. CCE, LUDHIANA - 2006 (201) ELT 220 (TRI), CCE, LUDHIANA Vs. AGGARWAL COTTON GINNING IND. - 2008 (226) ELT 181 (P H) . That they had submitted certificate of Chartered Accountant that the demand liability against them is equal to cenvat credit of tax charged by their vendors and hence there is no additional liability. He submits that the department has not analyzed the kind of service including the method of delivery, terms and conditions governing the sale/ service rendered, end user licence agreement which ought to have analyzed alongwith the invoices and supporting records. That the charge of service tax by the suppliers o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... envat credit to them remains to be verified against their service tax liability which has not been verified by the revenue. In such case if the Appellant is able to show that they had received cenvat credit charged from their suppliers which utilized for payment of their service tax liability in that case there cannot be any demand against the Appellant. Needless to say that the above exercise requires verification by the revenue of the invoices and relevant records of the Appellant. Thus the Appellant should produce the relevant invoices and records before the adjudicating authority whenever called upon to produce so that their claim of eligibility of cenvat credit and utilization thereof can be verified. Further the taxability of the acti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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