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TMI Blog2018 (7) TMI 1282X X X X Extracts X X X X X X X X Extracts X X X X ..... n being pointed out by the Revenue they paid Service Tax amounting to Rs. 15,31,000/- on the same under the Head/Account of 'Business Auxiliary Services'. The said payment was paid by the appellant vide TR-6 Challans on 30/11/2006. 2. Subsequently, the appellant took the credit of the same in their Cenvat credit accounts on 31/10/2007 on the ground that the „other income‟ shown in the records belonged to the Transportation Activities and as such the Service Tax was to be paid under the category of "Transport of Goods by Road Services". Instead the same was wrongly deposited under the head of "Business Auxiliary Services". It was their contention that in as much as, the GTA Services availed by them for inward as well as outward ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Services", which is a Cenvatable input service. Accordingly, they took the Cenvat credit of the amount paid by them. 6. The dispute essentially relates to the fact that as to whether the 'other income' shown by the appellant was taxable under the category of "Business Auxiliary Services" or "Transportation of Goods Services". Admittedly, Revenue has also not shown any detailed evidences to reflect upon the fact that the said 'other income' was taxable under the category of "Business Auxiliary Services". There is nothing on record to show that the appellant has provided the services under the said category. Merely because the appellant agree to pay Service Tax under the said category would not be reflecting of the fact that the said 'other ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich case it cannot be said that there was any mala-fide suppression on the part of the appellant. As such, we are of the view that the demand raised by invoking the longer period of limitation is not sustainable and is liable to be set aside on the ground of limitation itself. 8. We also find no merits in the finding of Commissioner (Appeals) that in terms of the Larger Bench decision in the case of BDH Industries Ltd. Versus Commissioner of Central Excise (Appeals), Mumbai-I reported at 2008 (229) E.L.T. 364 (Tri. - LB), the appellant was not entitled to take suo-motu refund without the sanction and permission of the authorities. We note that the present case is not a case of refund but a case of availment of credit of Service Tax paid b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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