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TMI Blog2020 (3) TMI 18X X X X Extracts X X X X X X X X Extracts X X X X ..... tation of goods is liable to pay 100% service tax under the reverse charge mechanism. Both the grounds are unsustainable for the reason that acceptance of an assessee or offer by an assessee to pay tax will not make the taxation rule legally tenable since it has to pay tax supposed to be imposed in conformity to Article-265 of the Constitution of India. CENVAT credit - HELD THAT:- As found from the OIO and OIA, admissibility of Cenvat Credit on other services like general insurance and maintenance, repair services were denied on the ground that Rule 2(l) clearly denies such availment but a bare reading of Rule 2(l) (BA) reveals that service of general insurance business, servicing, repair and maintenance, in so far as they relate to moto ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... air and maintenance service and towards recovery of inadmissible Cenvat Credit along with interest as well as equivalent penalty, that has aggrieved the Appellant to assail the said matter. 2. Factual backdrop of this case is that appellant had registered itself with Service Tax Department as Input Service Distributor. During the course of EA 2000 audit conducted for the period 2010-11 to 2013-14, it was observed that appellant had failed to discharge service tax liability under reverse charge mechanism on goods transport agency services received by it and re-conciliation of ST-3 Returns with audited financial statement indicated differential dutiable amount against which R.9,69,602/- service tax was payable under notification no. 30/2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... emo of appeal and during the course of hearing of appeal learned C.A. for the Appellant Mr Pankaj Shah submitted that the transport expenses shown in the financial statement were higher than what has been declared in ST-3 Returns for the reason that appellant sold goods on FOR basis but on specific request from customers it had sent some on to-pay basis in which case appellant had to reduce the amount from the customers payable amount that was originally fixed along with inclusion of freight charges and no short payment of service tax of ₹ 9,69,602/- under reverse charge mechanism as alleged in the show cause made. He further submitted that basing on Nirmal Seeds Pvt Ltd judgement reported in[2017 (3) GSTL 313 (Tri-Mumbai)], OIO and O ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nged by the appellant on the ground that appellant had availed services of ALD Fleet Management that comprised of acquisition, insurance, registration and lease rental of vehicle and not merely for repair and maintenance of motor vehicle which was opined in the OIO and OIA. Learned Counsel for the appellant also argued, with reference to judicial decision reported in Stanzen Toyotetsu India (P) Ltd. [2011 (23) S.T.R. 444 (Kar.)], Pricol Ltd [2016 (41) S.T.R. 649 (Tri.-Del.)], that the vehicles were taken on lease for daily commutation of employees so as to perform their duties effectively and it was tobe regarded as management of vehicle but both the adjudicating authority and Commissioner (Appeals) had emphasised and the maintenance of rep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l statement but in the OIO the said explanation was dishonoured primarily on two grounds. First, appellant has accepted the audit report and discharged service tax liability immediately thereafter. Second, notification no. 30/2012-ST clearly stipulated that the service recipient in respect of transportation of goods is liable to pay 100% service tax under the reverse charge mechanism. Both the grounds are unsustainable for the reason that acceptance of an assessee or offer by an assessee to pay tax will not make the taxation rule legally tenable since it has to pay tax supposed to be imposed in conformity to Article-265 of the Constitution of India and secondly in to-pay freight system, the receiver of goods transport service is the purchas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cles which were completely managed by the lesser M/s. ALD Automotive Pvt Ltd. Moreover general insurance for insuring motor vehicle was excluded from the definition of input service whereas record reveals that tax on general insurance to the tune of ₹ 7,53,850/- was paid and taken as credit by the appellant for its Unit while towards lease of vehicle, a meagre amount of ₹ 4,65,474/- was paid as service tax and Cenvat credit was taken, though not utilised by the appellant. In view of decision of this Tribunal given in the case of Nagpur Nagrik Sahakari Bank Ltd. v. CCE ST, Nagpur in appeal no. ST/85688/2018 (DOJ) 26-10-2018, Cenvat Credit taken or utilised before amendment and utilised after amendment do not carry much differ ..... X X X X Extracts X X X X X X X X Extracts X X X X
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