9911796707
TMI Blog2018 (11) TMI 1228X X X X Extracts X X X X X X X X Extracts X X X X ..... ng documents - appellants had availed Cenvat credit of service tax paid by M/s Tata Sky Ltd. through invoices through which RCVs were sold to the appellant - Held that:- Since the appellants were not providing any output service, therefore, they were not eligible for Cenvat credit of ₹ 75,28,164/- - credit not allowed. Penalty - Held that:- On perusal of Sub-rule 3 of Rule 15 of Cenvat Credit Rules, 2004, it is found that the service provider is liable to be imposed with penalty under the said provisions in case of fraud, collusion etc. and if the intention of the service provider is to evade payment of service tax - in the present case, the appellant was not required to pay any service tax. Therefore, the question of intention to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sued by M/s Tata Sky Ltd. and also reflected the same through their ST-3 returns. Revenue treated the said amount of discount received by the appellant to the tune of around ₹ 36 lakhs as consideration for service tax and demanded service tax under Business Auxiliary Service to the tune of ₹ 4,07,221/- through show cause notice dated 02.05.2013. It was further stated in the said show cause notice that on scrutiny of ST-3 returns for the period up to March, 2010 it revealed that appellants had availed Cenvat credit of service tax paid by M/s Tata Sky Ltd. through invoices through which RCVs were sold to the appellant. It was stated in the said show cause notice that the said invoices were not eligible documents for availment of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the appellant, it would result into double taxation. They further submitted that the search was conducted by Department on the business premises of appellant on 02.08.2010 and notice was issued on 02.05.2013, therefore, it was hit by limitation. The learned Commissioner has held that confirmation of demand around ₹ 4 lakhs was resulted into double taxation. Therefore, he dropped the demand. Further he has also held that Cenvat credit of around ₹ 75 lakhs was not admissible to the appellant in view of Rule 4A of Service Tax Rules, 1994 read with Rule 9 of Cenvat Credit Rules, 2004. He, therefore, disallowed the Cenvat credit of ₹ 75,28,164/-. Further, He dropped the demand of ₹ 4,07,221/-. Under Rule 15 (3) of Cenva ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... raised to the tune of ₹ 4,07,221/- in the show cause notice. We agree with the dropping of demand with the Original Authority but not on the grounds on which he dropped the demand. The Original Authority has dropped the demand around ₹ 4 lakhs, holding that it amounts to double taxation. However, we find that transaction was pure sale and it do not attract the provisions of Finance Act for levy of service tax. We also find that the appellant had on their own debited an amount of ₹ 4,07,221/- from the Cenvat credit of ₹ 75,28,164/- availed by them. We find that since the appellants were not providing any output service, therefore, they were not eligible for Cenvat credit of ₹ 75,28,164/-. We note that they have ..... X X X X Extracts X X X X X X X X Extracts X X X X
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