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TMI Blog2019 (11) TMI 1619X X X X Extracts X X X X X X X X Extracts X X X X ..... ood originally taken. Consequently, payment of interest alone from the expiry of ninety days upto the date on which the value of input service along with service tax of ₹ 11,48,68,498 stood paid to the service providers referred in RUD-7, should meet the ends of justice. The adjudicating authority did travel beyond the Notice in so far as it denied the Cenvat credit comprised in the 1 st issue formulated above on the ground that no evidence was adduced by the Appellant as regards payment of tax by the service provider. The Service Tax Law provides for legal remedy to the department in the form of Section 73 and 73A to enforce recovery of service tax not paid by the service provider after having collected the same. The period with which we are concerned in this proceeding did not cast any responsibility on the Appellant as a service recipient to ensure payment of tax by the service provider and the judicial decisions cited by the Appellant fully supports this proposition. Recovery on the strength of invoices addressed to the site office as opposed to the registered premises of the Appellant is justified or not? - HELD THAT:- The substantive benefit of Cenvat credit ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9 for recovery of service tax of ₹ 12,46,43,193/- along with interest thereon for having utilised irregular Cenvat credit on the following three allegations/issues: ISSUE NO. PARTICULARS CENVAT CREDIT INVOLVED 1 Failure to pay the value of input services of ₹ 104,77,73,635 including the tax thereon to the Service Providers within a period of 3 months, detailed in RUD-7 of the SCN, thereby violating the proviso to Rule 4(7) of the CENVAT Credit Rules, 2004 ₹ 11,52,58,830 2 Availment of credit on the strength of 11 numbers invoices issued by M/s. G. S. Atwal Co. addressed to site office as opposed to the registered premise of the Appellant Premature utilization of CENVAT Credit of the tax paid on GTA Services in April 2015 but credit availed in March 2015 ₹ 91,25,178 3 Premature utilization of CENVAT Credit of the tax paid on GTA Services in April 2015 ₹ 2,59,185 TOTAL ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 2nd proviso to Rule 4(7) itself and that no additional purpose would be served if the Appellant was still made to pay the amount under the 2nd proviso to Rule 4(7) and again claim refund of the credit arising thereunder in view of the introduction of GST. C. Our attention was also invited to the Circular No.990/14/2014-CX dated 19 November 2014 inter alia, clarifying that the time limit was not applicable to the re-credit arising under the proviso to Rule 4(7) of the CCR and the decisions of the Tribunal rendered in the following cases: M/s. Transpolar Logistics 2019 (2) TMI 486 M/s. Munjal Shova 2018 (12) TMI 84; Deevya Shakti Paper Mills Pvt. Ltd. Vs. CCE 2018 (5) TMI 602; Sanghi Industries Ltd. Vs. CCE 2013 (294) ELT 303 D. The Order-in-Original travels beyond the Notice in so far as it seeks to deny the credit on the ground that no evidence has been adduced by the Appellant to establish whether service tax stood paid by the service provider as that was never the case the Appellant was required to meet. Moreover, there was no provision in the CCR which required the Appellant to avail credit subject to payment of tax as indicated in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty thereon availed on the strength of invoices addressed to the site office as opposed to the registered premises of the Appellant is justified. In so far as the 1st Issue is concerned, it is undisputed that the entire value of input service, save and except ₹ 1,68,65,339/- involving Cenvat credit of ₹ 18,55,247/- stood paid by the Appellant to the service provider even prior to adjudication. Moreover, the Chartered Accountant certificate enclosed as Exhibit F to the Appeal Petition further evidences that value of input service of ₹ 35,48,362/- alone remained outstanding to the twelve Vendors captured in RUD-7 of the Notice involving a Cenvat credit of ₹ 3,90,332/-only. Therefore, strictly speaking this is not a case of failure to pay but only a case of delayed payment. The reasons for such delay in payment has been attributed to the cancellation of 214 Coal Blocks including the one being worked upon by the Appellant in August/September 2014 consequent to the Landmark Judgement of the Hon ble Supreme Court in Manohar Lal Sharma case (supra). The 2nd proviso to Rule 4(7) of the CCR, which has been alleged to be violated in the present case, reads as unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... otice in so far as it denied the Cenvat credit comprised in the 1 st issue formulated above on the ground that no evidence was adduced by the Appellant as regards payment of tax by the service provider. The Service Tax Law provides for legal remedy to the department in the form of Section 73 and 73A to enforce recovery of service tax not paid by the service provider after having collected the same. The period with which we are concerned in this proceeding did not cast any responsibility on the Appellant as a service recipient to ensure payment of tax by the service provider and the judicial decisions cited by the Appellant fully supports this proposition. We gainfully refer to the decision of the Mumbai Bench of the CESTAT in Zapak Digital case (supra) holding in para 7 as under- However, denial of Cenvat credit on the ground of failure to deposit tax by the service provider is not correct in equity when there is no express condition to that effect in the Cenvat Credit Rules. Consequently, denial of credit on this ground is not tenable. The imposition of penalty thereon is also not proper. 9. In so far as 2nd Issue is concerned, we are in complete agreement with the con ..... X X X X Extracts X X X X X X X X Extracts X X X X
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