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TMI Blog2024 (11) TMI 263X X X X Extracts X X X X X X X X Extracts X X X X ..... ing of ST-3, therefore on both the counts, the cenvat credit was wrongly disallowed which is not sustainable, therefore, we hold that the appellant is eligible for cenvat credit and the same stands adjusted against the service tax demand as accepted by the appellant. Demand as raised under advertising service in the show cause notice whereas the adjudicating authority itself has confirmed the demand under the category of selling of space for advertisement - This demand pertaining to the period prior to 01.07.2012 where the category of service was significantly statutory, therefore, if the demand was proposed under the wrong head, the demand will not sustain under different head as held in catena of judgments as cited by the appellant, therefore, the demand is set aside only on this ground itself without going into the issue of limitation as raised by the appellant. Penalty for failure to pay service tax for reasons of fraud, etc . - As in the facts of the present case, appellant is liable to pay penalty of 15% of the recoverable service tax amount. We find that the appellant have paid the service tax as admitted by them, the tax amount which includes the cenvat credit which is admi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... filed the ST-3 returns. He submits that merely because the appellant have not filed the ST-3 returns, will not make the appellant disentitle to avail the statutory credit as provided under Cenvat Credit Rules. 2.2 As regard the penalty to be restricted @15% of the total amount i.e. 31,88,560/- since the appellant have paid the amount of service tax as admitted by them along with interest and 15% penalty, no further penalty will sustain. In support of his submission he placed reliance on the following judgments: Antares Services Pvt. Ltd. 2024 (15) Centax 492 (Tri. Chen.) Target Corp. India Pvt. Ltd. 2019 Tax Corp (ST) 35835 (Bang.) Bharat Petroleum Corp. 2019 (365) ELT 536 (Tri. Mum) Voss Exotech Automative Pvt. Ltd. 2018 (363) ELT 1141 (Tri. Mum) Jagdamba Polymers Ltd. 2010 (253) ELT 626 (Tri. Amd.) Sri Sai Communications Pvt. Ltd. 2024 TaxCorp(ST) 40552 (HYD) Kalpataru Power Transmission Ltd. 2022 Taxcorp(ST) 37891 (Amd.) Indian Machine Tools Manufactures Association 2023 Tax Corp (ST) 39506 (CESTAT-Chandigarh) 3. Mrs. Sunita Menon, learned (Superintendent) Authorised Representative appearing on behalf of the Revenue reiterates the findings of the impugned order. 4. We have caref ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m Income-tax Department, it cannot be alleged that there was suppression etc. to justify the invocation of extended period. Therefore, I find that the impugned order is not legally sustainable. In the case of Target Corporation India Private Limited, Tribunal held and passed the following order: 5. After considering the submissions of both the parties and perusal of the material on record, I find that the only ground for which refund has been rejected is that the appellant has not disclosed the cenvat credit in ST-3 returns. Now the question arises can the non-disclosure or delay in disclosure in ST-3 returns, the assessee looses his right to claim cenvat credit or not? In the present case, I find that after going through the various conditions set out in the appendix to the Notification 5/2006 issued under Rule 5 of Cenvat Credit Rules, 2004 and Rule 4 and Rule 9 of Cenvat Credit Rules, I find that appellant has filed all the necessary documents for claiming the cenvat credit viz. Invoices, books of accounts, cenvat credit register which are required as per the various Rules and the Notification to claim cenvat credit but inadvertently he has failed to disclose the same in the ST- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so. In this regard, the appellant have been making various correspondence with the department and department was aware of the entire process. Therefore, it cannot be said that the appellant have not made claim for the Cenvat credit. It is further observed that as per the submissions of the Learned Counsel, the appellant have made the entries of all receipts of their inputs in the private records and in books of account. If that be so, the credit cannot be denied only on the ground that the credit was not taken in the particular Cenvat account, which is not the prescribed record. As per the provisions of Cenvat Credit Rules, the requirement for allowing the credit is the inputs/input services should be received in the factory of the manufacturer and the same should be used in or in relation to the manufacture of final product. It is obvious that when input is received, the same is entered in the records. Therefore, it cannot be said that the appellant have availed the credit belatedly or there is no claim of the Cenvat Credit by the appellant. It is observed that the adjudicating authority decided the entire case only on the ground that the appellant have availed the Cenvat credit b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... usly refunded, by reason of fraud or collusion or wilful mis-statement or suppression of facts or contravention of any of the provisions of this Chapter or of the rules made thereunder with the intent to evade payment of service tax, the person who has been served notice under the proviso to sub-section (1) of section 73 shall, in addition to the service tax and interest specified in the notice, be also liable to pay a penalty which shall be equal to hundred percent. Of the amount of such service tax: PROVIDED that in respect of the cases where the details relating to such transactions are recorded in the specified records for the period beginning with the 8th April, 2011 upto the date on which the Finance Bill, 2015 receives the assent of the President (both days inclusive), the penalty shall be fifty per cent. of the service tax so determined: PROVIDED FURTHER that where service tax and interest is paid within a period of thirty days of- (i) the date of service of notice under the proviso to sub-section (1) of section 73, the penalty payable shall be fifteen per cent. of such service tax and proceedings in respect of such service tax, interest and penalty shall be deemed to be co ..... X X X X Extracts X X X X X X X X Extracts X X X X
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