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TMI Blog2024 (2) TMI 821X X X X Extracts X X X X X X X X Extracts X X X X ..... ervices provided by them which was not permissible in terms of the conditions laid down in Notification no.01/2006 dated 01.03.2006. 2.2 Consequently, a Show Cause Notice dated 11.10.2011 was issued to the Appellant proposing to demand service tax of Rs.7,56,296/- along with interest and to impose penalty under Section 76 of the Finance Act, 1994. During the course of adjudication proceedings, the Appellant had paid cash amount of Rs.1,74,138 /- towards CENVAT Credit wrongly availed. 2.3 After due process of law, the Adjudicating Authority confirmed the demand of Service Tax along with interest and imposed penalty under Section 76. Being aggrieved, the Appellant filed an appeal before the Commissioner (Appeals). An amount of Rs.40,035/- along with interest at applicable rates amounting to Rs.49,715/- was paid thereafter towards the Service Tax liability during the proceedings before Commissioner(Appeals). Vide Order-in-Appeal No. 152/2014 -MST dated 14.03.2014, the Commissioner (Appeals) upheld the order of the lower authority as far as confirmation of Service Tax demand was concerned but waived the Penalty imposed under Section 76 in terms of Section 80 of the Finance Act, 1994. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce on the following judgements: i. Commissioner of C.Ex, Mumbai IVs. Bombay Dyeing & Mfg. Co. Ltd. -[2007 (215) ELT 3 (SC)] ii. Chandrapur Magnet Wires Pvt. Ltd. Vs. Collector of Central Excise, Nagpur [1996 (81) ELT 3 (SC)] Reliance was also placed on the Central Excise Circular No. 858/16/2007-CX dated 08.11.2007. He has emphasised that the credit was not only taken wrongly but also utilised contravening the main condition of the Notification No. 01/2006 dated 01.03.2006 and so abatement benefit cannot be accorded to the assessee. 6. Heard both sides and carefully considered the submissions and evidences on record. 7. The only issue that arise for decision in this appeal is: i. Whether the appellant is eligible for exemption under Notification No. 01/2006-ST dated 01.03.2006 when credit was availed and utilised on input services under CENVAT Credit Rules, 2004? 8. From the facts, it is evident that the appellant has availed CENVAT Credit along with the benefit of abatement, thus, contravened the main condition of Notification No. 01/2006-ST dated 01.03.2006, resulting in wrong assessment of the Service Tax liability for the period from April 2010 to March 2011. The Not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (supra) and the Tribunal's decision in Franco Italian Co. Pvt. Ltd., we find that the appellant is eligible for abated rate of duty as they have reversed the Cenvat credit availed during the material time, fully. As such, the bar on claiming on such exemption is no more applicable. Accordingly, we hold that the impugned order of denial of exemption is to be set aside." 12. The Tribunal New Delhi in the case of Travel Inn India Pvt. Ltd. Vs. Commissioner of Service Tax [2016 (41) S.T.R. 236 (Tri. - Del.)] has held as follows:- "7. ............ Moreover, the decision of Chandrapur Magnet Wires (P) Ltd. (supra) was examined by the Hon'ble High Court of Allahabad in the case of Hello Minerals Water (P) Ltd. (supra), wherein the Hon'ble Court has observed as under :- "17. The question as to whether manufacturer can be treated as not having taken credit on the inputs used in the manufacture of final product, even though it was originally taken but subsequently reversed, has been decided by a five Member Bench of the Tribunal in the case of Franco Italian Company Pvt. v. CCE, 2000 (120) E.L.T. 792. The aforesaid five members Bench of the Tribunal after taking into account the ratio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the five Member Larger Bench of the Tribunal as well as three Member Bench of the Tribunal, and is also contrary to the ratio of the decision of the Supreme Court in the case of Chandrapur Magnet Wire (supra)." Therefore, the argument advanced by the ld. Departmental Representative that if reversal is made before point of taxation only then the tax exemption is available is not acceptable to us. Further, we find that a similar issue came before this Tribunal in the case of Khyati Tours & Travels (supra),wherein this Tribunal has observed as under:- "4. It is seen that the appellant had reversed the wrongly availed Modvat credit along with interest, the same will have the effect as if no credit was availed by the appellants. The law on the above point is very clear and stands settled by various decisions of judicial as also the quasi judicial authorities. For the sake of convenience we may refer to the order passed by Commissioner (Appeals) in the case of Om Shanti Travels, Ahmedabad being Order-in-Appeal No. 197/2010(STC)/MM/ Commr(A)/Ahd, dated 9-8-2010, wherein after summarising the entire case law, the benefit stands extended to the assessee. We reproduce the relevant para ..... X X X X Extracts X X X X X X X X Extracts X X X X
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