9911796707
TMI Blog2019 (1) TMI 168X X X X Extracts X X X X X X X X Extracts X X X X ..... - Held that:- In view of the explanation given by the appellant that the said credit has been availed on reverse charge basis and they have shown the payment vide monthly challan produced on record, therefore, denial of CENVAT credit of ₹ 35,535/- is set aside. Demand of Interest - Held that:- Since the appellants have proved that they have availed the credit but have not utilized the same and they had sufficient balance in their CENVAT account till the date of reversal of the wrongly availed credit, the appellants are not liable to pay interest and penalty. The case remanded back for proper computation of demand of CENVAT credit of service tax for the normal period and interest and penalties are set aside - appeal allowed in part and part matter on remand. - E/20022 - 20025/2018-SM - Final Order No. 21943 - 21946/2018 - Dated:- 28-12-2018 - SHRI S.S GARG, JUDICIAL MEMBER Ms. Neetu James, Advocate For the Appellant Mrs. Kavitha Podwal, Superintendent (AR) For the Respondent ORDER PER: S.S. GARG, The appellants have filed these four appeals against the common impugned order No. 292-295/2017 dated 03/10/2017 whereby the Commissioner (A) h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... king the extended period of limitation and other three show-cause notices were within the normal period of limitation. The appellant contested the proposal in the show-cause and submitted that the services on which they have availed CENVAT credit are appropriately covered under the definition of input service as the said services are used by the appellant directly or indirectly in or in relation to the manufacture and therefore, are eligible input service. The appellants have also contested the invocation of longer period of limitation and imposition of penalty on the ground that there was no suppression of facts with intent to evade payment of duty. Initially, the original authority confirmed the demand of various services but the Commissioner (A) vide the impugned order has only confirmed the demand of irregular CENVAT credit in respect of two services Forwarding and Cargo Handling service and Repair and Maintenance of ETP. 4. Heard both the parties and perused the records. 5. Learned counsel for the appellant submitted that the impugned orders are not sustainable in law as the same has been passed without properly appreciating the facts and the law. He further submitted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the ground that no service tax has been charged in the bills produced by the appellant whereas the fact of the matter is that the invoices do not reflect the service tax amount because the appellants being a recipient of taxable service of works contract is to discharge service tax in respect of services provided or agreed to be provided in service portion in execution of works contract on reverse charge basis liable in terms of Notification No.30/2012-ST dated 20.6.2012. Accordingly, the appellants have discharged service tax in respect of the impugned invoices raised on them vide monthly challan and the relevant challans have been produced at page 107-112 of the paper book. As far as invoking the extended period of limitation is concerned, the appellant submitted that they have not suppressed any facts from the department much less acted with an intent to evade payment of duty. She further submitted that the show-cause notice was issued to the appellant on 27.6.2014 to demand CENVAT credit availed during the period June 2009 to September 2013 and hence, the demand for the period June 2009 to May 2013 is barred by limitation. The appellant submitted that they have been filing ER1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hese charges were for freight for transit of goods from the port of loading to port of discharge i.e., from Indian Port/ICD to the destination Port abroad. She also submitted that in the case of exports, the place of removal is the port of shipment and the CENVAT credit is admissible up to the place of removal as per the definition of input services and the credit of freight and insurance charges beyond the place of removal is not admissible. She also submitted that as far as repair and maintenance of ETP plant is concerned, the appellants have not produced the bills wherein service tax has been charged. She further submitted that it is a settled law that in case of export, the place of removal of goods is the port of shipment as held by the Larger Bench in the case of Honest Bio-vet Pvt. Ltd. vs. CCE: 2014 (310) ELT 526 (Tri.-LB). She also relied upon the following decisions: Maini Precision Products Pvt. Ltd. vs. CCE: 2018 (9) GSTL 203 (Tri.-Bang.) Kuntal Granites Ltd. vs. CCE, Bangalore: 2007 (215) ELT 515 (Tri.-Bang.) In order to support her argument that in the case of export, place of removal is the port and CENVAT credit of service tax is admissib ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
