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TMI Blog2024 (11) TMI 1283X X X X Extracts X X X X X X X X Extracts X X X X ..... availed as can be seen from impugned order. Therefore, it is apparent that there is no dispute that whatever service tax was to be paid by the respondent would have been available as cenvat credit to them instantly. In these circumstances, invocation of extended period of limitation cannot be sustained. See Nayara Energy Ltd. [ 2023 (12) TMI 252 - CESTAT AHMEDABAD ] and Chiripal Polyfilms Ltd. [ 2021 (3) TMI 1345 - CESTAT AHMEDABAD] Thus it can be held that there was no malafide or intention to evade on the part of the respondent and therefore, extended period of limitation could not have been invoked. Consequently no penalty u/s 11AC could be imposed. The appellant has already discharged the duty liability. - HON'BLE MEMBER (JUDICIA ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the appellant. 2.1 Learned authorized representative pointed out that demand has been dropped by Commissioner stating that the agreement entered between the aforesaid authorities was for supply of technical knowhow and not for deputation of engineers which is a consequential necessity. He pointed out that the visit of engineers alone without transfer of technical knowhow would not have given effect to the agreement and vice versa. He pointed out that transfer of technical knowhow alone without assistance in installation and use will not serve the purpose of buyer, the respondent in the instant case. He pointed out that for the purpose of Intellectual Property Rights, the technical knowhow consist of Expert's skill, information or body ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er argued that the respondent themselves have treated the said receipt of technical knowhow as service and not as goods in so far as no custom duty was paid on the same. 2.4 It was also argued that the Commissioner has overlooked the changes made in the law since 01.07.2012 and introduction negative list. The Revenue also relies on the decision of Tribunal in the case of Forbes Mineral Pvt. Ltd. 2015 (38) STR 843 to assert that merely because of Revenue neutrality, the demand cannot be set aside. 3. Learned counsel appearing for the respondent pointed out that in the instant case the respondent had written back an amount of Rs. 3,93,59,577/- and paid an amount of Rs. 5,59,87,347/- to the foreign supplier. The respondent had also paid servic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t that whatever service tax was demanded from them was available as cenvat credit and therefore, this was a revenue neutral situation. He argued that in such as situation Notification of extended period cannot be sustained. He relied on the following decisions: Energy Ltd. 2023 (12) TMI 252 CES-AHM Chiripal Polyfilms Ltd. 2021 (3) TMI 1345 CES-AHM Ashirwad Foundaries Pvt. Ltd. 2020 (3) TMI-847-CES-KOL Reliance Industries Ltd. 2016 (6) TMI 1108 (CES-MUM) 7. We have considered the rival submissions. We find that the impugned order has not examined the aspect relating to payment of duty and availment of credit thereon. The impugned order takes note of service tax paid by the appellant and also the fact that the credit of same has been availed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in favour of the appellant, as regards penalty imposed, We find that the plea of Revenue neutrality is strong plea, as in this case also credit is available to the appellant on Service Tax paid under reverse charge mechanism can be utilized for discharge of excise duty and hence there can be no reason to avoid Service Tax liability. It is noted that various decisions are in favour of the assessee. The judgments of Tribunal in the case of.Dineshchan- dra R. Agarwal Infracon Pvt. Ltd. 2010 (18) S.T.R. 39 (Tri. - Ahmd.) (supra) and Sagar Enterprises 2010 (18) S.T.R. 212 (Tri. - Ahmd.) (supra) and also the judgments relied upon by the Ld. advocate are directly on the point and are in favour of the assessee. In the case of Chiripal Polyfilms Lt ..... X X X X Extracts X X X X X X X X Extracts X X X X
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