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TMI Blog2022 (12) TMI 55X X X X Extracts X X X X X X X X Extracts X X X X ..... iability discharged by the appellant; settled law on such compliance must be given effect to. The contention of the appellant that depreciation claimed earlier has since been revised and appropriate changes made in returns under Income Tax Act, 1961 should have been considered in the light of judicial decision without exceeding the jurisdictional competence of the adjudicating authority for insisting upon acceptance of the same by authorities empowered under that statute. The adjudicating authority is required to consider the evidence furnished by the appellant that duty liability having been discharged on tippers sourced by them, as now placed on record, before concluding that the credit availed therein is ineligible. The impugned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ining services that was legislated as liable to tax with effect from 1st June 2007 by incorporation of (zzzy) to any person, by any other person in relation to mining of mineral, oil or gas; in section 65(105) of Finance Act, 1994 for which the appellant, however, acquired registration only on 3rd October 2008. According to the appellant, tax liability of ₹ 54,88,998 on ₹ 5,32,90,496 that had been received by them was discharged by three separate payments amounting to ₹32,62,611 between 4th December 2009 and 1st April 2010 and by debiting of ₹22,26,387 with the non-compliance regularized by 29 th April 2010 upon filing of returns in accordance with procedure as prescribed despite which further payment of & ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... v. Commissioner of Central Excise, Bhopal [2010 (19) STR 665 (Tri-Del)], held that 6. The dispute is limited to five bills for a total amount of service charges of Rs. 1,04,153/- involving service tax of Rs. 11,358/-. From the order of the Commissioner (Appeals), it is clear that the Commissioner (Appeals) has not held that the disputed amount of service charges have been received by the appellants. The service tax liability is obviously subject to realisation of the service charges. Merely because bills have been received by the appellant and the said bills have been reflected in the books of accounts, the service tax is not payable unless the amount is realised. and that 4. After hearing both sides and perusing the case r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... edpur [2008 (9) STR 564 (Tri-Kolkata)] which suffice to establish that the computation of undischarged liability in the impugned order is erroneous. In this context, he also highlighted the observations of the Tribunal in Evergreen Supplies v. Commissioner of Central Excise, Mangalore [2008 (9) STR 467 (Tri- Bang)]. 6. Drawing our attention to the invoices for the tippers that allegedly did not include the details of duty discharged, Learned Counsel has furnished the corresponding documents issued by the manufacturer. It was pointed out by him that despite taking note of the reversal of depreciation availed on the capital goods, the adjudicating authority has stretched his jurisdictional reach to render the finding that no evidence of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e decision of the Hon ble High Court of Karnataka in Commissioner of Central Excise Service Tax v. Suprajit Engineering Ltd [2010 (253) ELT 69 (Kar)] is abundantly clear on the ineligibility for credit while having availed depreciation for the purposes of Income Tax Act, 1961 and that framework of interpretation has been elaborated upon by the Hon ble Supreme Court in Krishi Upaj Mandi Samiti v. Commissioner of Central Excise and Service Tax, Alwar [2022-TIOL-15-SC-CX]. 8. The decisions of the Tribunal cited by Learned Authorized Representative pertain to credit availed by manufacturers and the criticality of establishing that the capital goods/ inputs did arrive at the place of manufacture as well as of utilization in the manufacturi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ow placed on record, before concluding that the credit availed therein is ineligible. 11. The decisions cited on behalf of the appellant make it clear that registration is not relevant in the absence of evidence of non-utilization of the capital goods in rendering of output service and of eligibility to credit even f the address on invoices is other than the registered one. That should apply to all capital goods procured after the said service was made taxable. 12. The impugned order is, thus, bereft of findings based on law, as enacted and judicially determined, applied to the facts put forth by the assessee and requires re-determination. To enable this, we set aside the impugned order and remand the matter back to the original aut ..... X X X X Extracts X X X X X X X X Extracts X X X X
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