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TMI Blog2018 (10) TMI 324X X X X Extracts X X X X X X X X Extracts X X X X ..... as a service provider under GTA, BAS and Technical Testing service and Information Technology Support Service. They were receiving service of commission agents for export of their goods and the payments of commission was made during the period 04/2009 to 12/2009. The option for the exemption under Notification No.18/2009-ST was made on 18/12/2009 i.e. after the payments of commission was made. Hence department alleged that they were liable for penalty for exercising the option after the payment was made. The appellant was receiving services from outside India from their parent company at Austria who was holding 65% of the shares. The transaction was between associated enterprises and as per Rule 7 of the Point of Taxation Rules, the relevan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the impugned order has been passed ex parte without hearing the appellant. He further submitted that there was a delay in furnishing intimation for availing the exemption under Notification No.18/2009 which is a procedural lapse and substantial benefit cannot be denied on account of procedural infraction. He further submitted that as per Rule 7 of the Point of Taxation Rules, 2011, provision of the same is applicable only for the specified services which notification under Section 68(2) of the Finance Act and the service rendered does not fall in that category and hence the demand is not correct. He further submitted that the amendment to Rule 3(4) wherein the payment under reverse charge mechanism must be made in cash was applicable f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 66A. In terms of Rule 2(r), the appellant is a deemed service provider. Rule 5 of Taxation of Services (Provided from outside India and received in India) Rules only refer to availing of CENVAT credit and not utilization of CENVAT credit. Further the restriction to utilization of CENVAT credit came into CENVAT Credit Rules by inserting Explanation in Rule 3(4) vide Notification No.28/2012-CE(NT) dt. 20/06/2012 which reads as under:- Explanation:- CENVAT credit cannot be used for payment of service tax in respect of services where the person liable to pay tax is the service recipient". 7. Further I find that before 20/06/2012 there was no restriction upon the deemed service provider to pay the service tax liability from CENVAT credit. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld by the Hon'ble Supreme Court in 2017 (52) STR J79 (SC). In view of the above discussions and by following the ratio of the above judgments, we allow the appeal with consequential relief. 8. Similarly in the case of Shree Rajasthan Syntex Ltd. cited supra, the Tribunal has held that the issue as to whether service tax can be paid from CENVAT account by the assessee under reverse charge mechanism is no more res integra and it has held that CENVAT credit can be utilized for payment of service tax payable under reverse charge mechanism in respect of the services received from abroad. Further I also find that the Commissioner(Appeals) has held that there is no suppression on the part of the appellant. Therefore extended period cannot be invo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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