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TMI Blog2024 (3) TMI 404X X X X Extracts X X X X X X X X Extracts X X X X ..... nder Limited for non-compete agreement for a period of 3 years - HELD THAT:- There is no room for any assumption or presumption in a taxing statute. In order to bring any service within the scope of 'Business Auxiliary Service' the promotion of client's business must be direct - there is no clause in the agreement which promotes the business of Flender. In this regard, the Appellant cited the decision of the Tribunal, in the case of M/S JETLITE (INDIA) LIMITED VERSUS CCE, NEW DELHI [ 2010 (12) TMI 40 - CESTAT, NEW DELHI] , wherein it has been held that the onus is on the Department to establish the taxability of the service. It is found that the Revenue has not discharged this responsibility - In the instant case, it has not bee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have not been used exclusively for providing any exempted output service - Since the Appellant has utilised full credit only in respect of those input services specified in Rule 6(5) of CCR 2004, it is held that the Appellant has rightly availed and utilized the CENVAT Credit as provided under Rule 6(3)(c) and Rule 6(5) of the CENVAT Credit Rules, 2004. Accordingly, the demand confirmed in the impugned order on this count is not sustainable. Interest and penalty - HELD THAT:- Since the demand of service tax confirmed in the impugned order is not sustainable, the question of demanding interest and imposing penalty does not arise. The impugned order set aside - appeal allowed. - HON BLE SHRI ASHOK JINDAL, MEMBER (JUDICIAL) And HON BLE SHRI ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Ld. Commissioner has confirmed service tax of Rs.69,11,316/- under the category of Business Auxiliary Service', along with interest and penalty. (ii) The Appellant has availed CENVAT Credit on certain input services and utilised 100% of the said credit while providing output services. The Revenue was of the view that the Appellant is entitled to use only 20% of the common input services Credit availed to pay service tax on the output services. As the Appellant has used 100% of the common input services credit, the demand of Rs.4,14,516/-was raised in the Notice and the same was confirmed in the impugned order along with interest and penalty. 3. None appeared for the Appellant. Heard the Ld. Authorized Representative appearing on beh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wherein it has been held that the onus is on the Department to establish the taxability of the service. We find that the Revenue has not discharged this responsibility. In the instant case, it has not been spelt out in the Notice under which sub-clause of the Business Auxiliary Service the activity of the Appellant can be classified. In the case of M/s. Amrit Foods Vs CCE [2005 (190) E.L.T. 433] relied upon by the appellant, the Hon'ble Supreme Court has held that Notice must contain the exact nature of contravention. In the absence of the same, the demand is liable to be set aside. As the Notice has not specified the specific sub-clause in the definition of 'Business Auxiliary Service' where the services rendered by the Appella ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erve that the Appellant has been providing output services such as 'Business Auxiliary service', Storage and Warehousing Service', and 'Maintenance and Repair Service' and paying service tax on them. Thus, it is evident that the credit availed on the input services have not been used exclusively for providing any exempted output service. We also find this is not the allegation in the Notice. The Notice generally alleges that the Appellant cannot use CENVAT Credit availed on common input services over and above 20% as prescribed in Rule 6(3) of the CENVAT Credit Rules, totally ignoring the provisions of Rule 6(5) which allows full credit in respect of the services specified therein. Since the Appellant has utilised full c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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