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TMI Blog2019 (5) TMI 1938X X X X Extracts X X X X X X X X Extracts X X X X ..... tution, with effect from 1 March 2016, that exempted service does not include Ocean Freight. It is held that the said explanation and/or clarification relates back to the date since the said rule exists on the statute. Accordingly the show cause notice is not sustainable. It is also held that show cause notices issued are by way of change of opinion. Further there is no case made out of any suppression of facts or contumacious conduct, as the transactions were duly found recorded in the books of accounts maintained in the ordinary course of business. The appeal is allowed and the impugned order is set aside. The Appellant is entitled to consequential benefits in accordance with law. It is also held that under the facts and circumstances the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 1944, as a non-taxable service. The Appellant in the course of the business activity avails Cenvat Credit on several input services like courier services, telephone service, software related service, insurance of ships, etc., which were used in providing for various output services which were taxable as well as non-taxable service, i.e. Ocean Freight. 3. It further appeared to revenue that as Ocean Freight was not appearing in the list of taxable services prior to 01.07.2012, unlike transportation of goods by road, rail, aircraft, pipeline etc., therefore, was not subjected to service tax. After the introduction of Negative list under section 66D of the Finance Act, 1994, with effect from 01.07.2012, were in under clause (p) of the nega ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s also proposed 4. The SCN was adjudicated on contest and the proposed demand confirmed along with equal amount of penalty under Section 78. Being aggrieved the appellant filed appeal before Commissioner Appeals, who rejected the appeal upholding the order in original. 5. Aggrieved the appellant assessee is before this Tribunal. The Learned Counsel points out that rule 2 (e) which defines exempted service was substituted with effect from 1 July 2012, the same provided that exempted service shall not include a service which is exported in terms of rule 6A of the service tax rules. Further the said clause (e) was again amended and substituted with effect from 1 March 2016, Cenvat Credit 3rd amendment Rules 2016, and the clause - but shall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been wrongly taken, the same shall be recovered from the manufacturer or provider of output service under Section 11A of the Excise Act or Section 73 of the Finance Act, as the case may be, shall apply mutatis mutandis for effecting such recoveries. The Learned Counsel also relies upon the ruling of a division bench of this Tribunal in LG Electronics India Pvt. Ltd versus CC & CCE & ST, Noida reported at 2017 (3) GSTL 249 were under the fact that LG was also engaged in trading along with manufacture of electronic goods and had taken Cenvat Credit on certain inputs services, which were common in nature, it was observed that they were taking Cenvat Credit on service tax paid on input services. The show cause notice proposed recovery under ru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the said explanation and/or clarification relates back to the date since the said rule exists on the statute. Accordingly I hold that the show cause notice is not sustainable. Further in the facts and circumstances I also find that show cause notices issued are by way of change of opinion. Further there is no case made out of any suppression of facts or contumacious conduct, as the transactions were duly found recorded in the books of accounts maintained in the ordinary course of business. Thus the appeal is allowed and the impugned order is set aside. The Appellant is entitled to consequential benefits in accordance with law. It is also held that under the facts and circumstances there being no allegation of taking of ineligible Cenva ..... X X X X Extracts X X X X X X X X Extracts X X X X
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