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TMI Blog2018 (7) TMI 157X X X X Extracts X X X X X X X X Extracts X X X X ..... FA classifiable under chapters 15, 34 and 38 of the first schedule to CETA. They entered into an agreement with M/s I.M.C. Ltd. with regard to Oil Pipeline Supply Management Services termed as 'Pipeline utilisation charges' to oil tanks. There is a clause in the agreement that in case of shortfall in the defined quantity, the appellant is liable to a certain amount for such shortfall as penalty. The appellant paid the penalty to the service provider for such shortfall and the credit of service tax on such payment has been availed by the appellant. According to the Revenue, the appellant has availed credit of service tax for such services which were not rendered by the service provider and were basically in the nature of penalty and therefor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble in the event of a shortfall of minimum guarantee shall stand reduced to Rs. 25/- per MT. It is expressly stated that for this purpose, year shall be the calender Year from January to December and the minimum guarantee computation will be on the completion of every year. Should the annual throughput exceed 20000 MT per annum then for the additional cargo above 20000 MT the "Pipeline Utilisation Charges" shall be Rs. 25/- per MT. If for any reason whatsoever, the "Company" is unable to pump/transfer the liquid cargo so required by "Party" and the "Party" is in no way responsible for such failure then for the period of disruption the minimum guaranteed quantity shall be reduced proportionately." 5. There is no dispute that service tax is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the said decision has no application to the facts before me in the present case. 5.2 In the case before me, the issue is whether the credit can be denied even if the duty has been paid wrongly by the supplier of inputs. This Tribunal in a number of cases cited supra relied upon by the lower appellate authority has clearly held that the excise authorities having jurisdiction over the recipient of inputs cannot reopen the classification adopted by the officer having jurisdiction over the input supplier. In the present case, it is not the case of the Revenue that the excise authorities having jurisdiction over the input supplier has questioned the classification and held that the payment of duty was incorrect. If that be so, the authoriti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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