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TMI Blog2019 (8) TMI 325X X X X Extracts X X X X X X X X Extracts X X X X ..... for providing taxable services under the category of 'Business Auxiliary Service'. During the course of verification of the records of the service provider by the departmental audit, it was noticed that the assessee has short paid Service Tax of Rs. 1,40,397/- during September 2013, wrongly availed CENVAT credit of Rs. 48,717/- and also short paid Service Tax for the year 2013-14 to 2014-15 amounting to Rs. 9,12,985/-. Accordingly, a SCN dated 30.12.2016 was issued demanding Service Tax amount along with applicable interest and also proposal was made to impose penalty. The Assistant Commissioner of Central Excise, Mangaluru vide OIO dated 20.11.2017/27.11.2017 confirmed the demand of Service Tax and further demanded Service Tax of Rs. 1,77, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as the same is not reflected in the ST-3 Returns. Subsequently, on pointing out, they have reversed the said amount and they have furnished relevant invoices and claimed that they are entitled to CENVAT credit of Service Tax paid to the service provider. Learned Consultant also submitted that extended period has wrongly been invoked and the entire demand is barred by limitation. 5. On the other hand, Learned AR defended the impugned order and submitted that the Commissioner (Appeals) has given detailed reasons for not allowing the CENVAT credit. He further submitted that the extended period has rightly been invoked because the irregularity was detected during the audit. 6. After considering the submissions of both the parties and perusal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is not disputed that the input services are in relation to rendering output service and hence input service in terms of Rule 2(l) of the CENVAT Credit Rules. Further, the payment made in respect of service received and consumed as service provider and further output services are not exempted from tax and Service Tax is payable on output services therefore there is no dispute with regard to the receipt of services as utilized for output service and as per provision of Rule 4(7) of CENVAT Credit Rules, the appellant has availed the credit of Service Tax on input services which is permitted under Rule 4 (7) of CENVAT Credit Rules therefore denial of credit is set aside. With regard to short payment of Service Tax amounting to Rs. 1,77,839/- f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s no suppression on the part of the appellant to evade the Service Tax. Further, the SCN was also issued on the basis of audit where the appellant produced all the records before the audit party. Further I rely upon the decision of the Hon'ble High Court of Calcutta in the case of Simplex Infrastructure Ltd. Vs CCT [2016-TIOL-779] wherein it was held that extended period is not invokable without any basis and when the SCN was issued on the basis of audit. 7. In view of my discussion above, I am of the considered view that the impugned order is not sustainable in law on merits as well as on limitations and therefore I set aside the same by allowing the appeal of the appellant with consequential relief, if any. (Order was pronounced in Open ..... X X X X Extracts X X X X X X X X Extracts X X X X
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