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TMI Blog2024 (1) TMI 643X X X X Extracts X X X X X X X X Extracts X X X X ..... not justified because the appellant has not suppressed any material fact from the department and was subject to regular audit and has been regularly filing monthly service tax returns with the department. Therefore, the invocation of extended period is not justified in the facts and circumstances of this case. The impugned order is bad in law on merits as well as on limitation - Appeal allowed. - Mr. S. S. GARG, MEMBER (JUDICIAL) AND Mr. P. ANJANI KUMAR, MEMBER (TECHNICAL) Ms. Krati Singh a/w Ms. Shreya Khunteta, Advocates for the Appellant Shri Siddharth Jaiswal, Shri Nikhil Kumar Singh, Authorised Representative for the Respondent ORDER The present appeal is directed against the impugned order dated 15.10.2012 passed by the Commissioner (Adjudication) Service Tax, New Delhi whereby the Ld. Commissioner has confirmed the demand of Rs. 6,73,96,506/- under proviso to Section 73(1) of the Finance Act, 1994 read with Rule 14 of the Cenvat Credit Rules, 2004 alongwith interest and also imposed penalty under Section 76, 77 and 78 of the Finance Act, 1994. 2. The brief facts of the case are that the appellant is engaged in providing the taxable services ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Ld. Counsel for the appellant submits that the impugned order is not sustainable in law as the same has been passed without appreciating the facts and the law and the binding judicial precedents. She further submitted that in the impugned order, the Adjudicating Authority has denied the CENVAT credit of Service tax paid under reverse charge mechanism under Rule 2(1)(d) on the ground that the Appellant was not liable to pay service tax on import of services prior to 18.04.2006 and thus not eligible to avail CENVAT credit of the tax paid voluntarily. 4.1 She further submitted that during the relevant time, there was lack of clarity on the issue of law related to the liability of the service recipient to pay Service tax under reverse charge mechanism from August 2002 to 17.04.2006 in case services are provided by non-resident service provider. Ld. Counsel thereafter referred to the series of developments which took place to clear the position of law. 4.2 She referred to Notification No. 12/2002-S.T. dated 01.08.2002 inserted Rule 2(1)(d)(iv) of the Rules which provided that in case services are provided by non-resident service provider, the service recipient will be the perso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the Board Circular F. No. 276/8/2009-CX8A dated 26.09.2011 declaring that the liability of Service tax under reverse charge mechanism will arise only with effect from 18.04.2006 in case the services are provided by a person located outside India to a person in India, irrespective of whether the services received in India or outside India. 4.8 Ld. Counsel further submits that the Appellant being a prudent and an honest taxpayer paid the Service tax for the relevant Period under bona-fide belief that the services received are liable to Service tax under Section 66 of the Act read with Rule 2(1)(d)(iv). 4.9 She further submits that this issue is no more res-integra and has been settled by various decisions of the Tribunal consistently holding that the assessee is entitled to avail cenvat credit in respect of service tax paid even when the service tax is paid under the mistake of law. For this submission, she relied upon the following decisions:- CCE ST LTU, Chennai v. Tamil Nadu Petro products Ltd. [2015 (40) S.T.R. 878 (Mad.)] Alcatel Lucent India Ltd. Versus Commissioner of Service Tax [ST 55441 of 2014 Final Order No. 51039/2021 dated 21.01.2021] Bajaj Allianz ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er, the appellant was under bona fide belief that service tax is to be discharged under reverse charge mechanism as there was no clarity in this respect which is evident from various circulars and notifications issued by department from time to time. Further, the issue involves interpretation of the complex provisions and the entire exercise of availing Cenvat credit is revenue neutral. For this submission, she relied upon the following decisions:- The Commissioner, Central Excise and Customs and Another Versus M/S Reliance Industries Ltd. And Commissioner of Central Excise and Service Tax Versus M/S Reliance Industries Ltd. [2023-TIOL-94-SC-CX] 5. On the other hand, the Ld. Authorized Representative reiterated the findings in the impugned order and in support of his submission, he relied upon the decision of the Tribunal in the case of Swarnandhra IJMII Integrated Township Development Co. Pvt. Ltd. vs. Commissioner of Customs, Central Excise Service Tax, Hyderabad-IV-2022 (64) GSTL 556 (Tri.-Hyd.). 6. After considering the submissions of both the parties and perusal of the material on record, we find that in the present case, the only issue to be decided by this Tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ai4 to contend that the observations made by the Commissioner are not correct and that the appellant is entitled to avail CENVAT credit. 14. In 3M India Ltd., it was observed by the Tribunal as under: 2. .The only question to be decided by me in this appeal is whether the assessee has availed CENVAT credit wrongly as alleged in the show cause notice and whether the impugned order passed by the Commissioner (Appeals) allowing appeal of the assessee on the ground that assessee was not liable to pay service tax under the reverse charge mechanism until the introduction of Section 66A of the Finance Act, 1994. It is undisputed that service tax was paid for input services on reverse charge method (import of service in March, April, November, 2005. It is also undisputed that service tax liability on this type of service came into effect only from 18.04.2006 with the introduction of Section 66A of the Finance Act, 1994 3. Therefore, keeping in view the above facts, I am of the considered opinion that in the first instance, respondent was not liable to pay service tax and secondly having paid it, the assessee is entitled to get CENVAT credit and the assessee has rightly avail ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nded period cannot be invoked as the appellant have been disclosing the credits in their ER-1 returns and they were under a bonafide belief that they are liable to pay tax in terms of Rule 2(1)(d)(iv) and also entitled to take credit and the issue involved in the present case was with regard to interpretation of statutory provision and moreover the ld. Commissioner has also not given any finding that the appellant have suppressed anything from the department. Further, I find that the judgement cited by the ld. AR are not applicable in the facts and circumstances of the present case and it is not necessary for me to deal with each and every judgement separately. 16. In view of the aforesaid decisions of the Tribunal, it has to be held that the Commissioner was not justified in denying CENVAT credit on the service tax paid by the appellant on import of services for the period prior to April 18, 2006. 6.4 Further, we find that the appellant under a bona fide belief that he is liable to pay service tax on import of service paid the service tax under Rule 2(1)(d) of the Rules and availed the cenvat credit of the same and thereafter utilized the cenvat credit for payment of outw ..... X X X X Extracts X X X X X X X X Extracts X X X X
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