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TMI Blog2025 (1) TMI 476X X X X Extracts X X X X X X X X Extracts X X X X ..... the ST 3 return of the half year wherein the said amount paid by the Appellant is also shown as CENVAT Credit in the Cenvat table of the return. The same is also disclosed in ER 1 return by the Appellant. Thus, it is observed that the allegation of availment of CENVAT Credit without payment cannot arise as the payment is done within the due date of payment of service tax which is also visible from the table set out in the demand order. There is no dispute with respect to the genuineness of input services availed by them. Thus, the appellant is eligible to avail the credit and the allegation in this regard in the impugned order is not sustainable. Utilization of credit before making payment of the service tax - HELD THAT:- It is observed th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... DICIAL) HON BLE SHRI K. ANPAZHAKAN, MEMBER (TECHNICAL) Shri Ankit Kanodia, Advocate Smt. Megha Agarwal, Advocate for the Appellant Shri S. Dey, Authorized Representative for the Respondent ORDER ORDER : [ PER SHRI K. ANPAZHAKAN ] The present appeal has been filed against the impugned Order-In-Original No: 16/CCE/CEX/RKL/2015- 16 dated 30.12.2015 passed by Commissioner of Central Excise, Customs Service Tax, Rourkela, wherein the Ld. Commissioner has disallowed CENVAT Credit amounting to Rs. 1,35,91,278/- availed by M/s. Prabhu Sponge Private Ltd. (herein after referred as 'the appellant') on the service tax paid under reverse charge mechanism in the same month as of the liability, in respect of the transport of goods services for th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. 1,35,91,278/- for the period 2007-08 to 2011-12 (upto October 2011), On adjudication, the Ld. Commissioner has confirmed the disallowance/recovery of CENVAT Credit along with interest and imposed equal amount of tax as penalty. 3. The appellant submits that the Ld. adjudicating authority has travelled beyond the scope of Show Cause Notice. It is the submission of the appellant that the impugned order has been issued alleging wrongful availment of Input Service Credit amounting to Rs. 1,35,91,278 during the period from 2007-08 to 2011-12 before paying service tax. The appellant referred Rule 4(7) of the CENVAT Credit Rules, 2004 and contended that CENVAT Credit in respect of input service shall be allowed, on or after the day on which the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... table of the return. The same is also disclosed in ER 1 return by the Appellant. Thus, the allegation of availment of CENVAT Credit without payment cannot arise as the payment is done within the due date of payment of service tax which is also visible from the table set out in the demand order. 3.3. In their additional submission, the Appellant states that there is no dispute with respect to the genuineness of input services availed by them and its utilisation thereof. It is their submission that although they have availed the CENVAT Credit during the relevant period, they have not utilised the credit for the payment of any other liabilities for the said month. Thus, there is no obligation on the Appellant to pay any tax or interest. 3.4. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rve that the appellant has paid service tax on GTA service under RCM basis. Under RCM basis, the service tax liability is paid within 5th of the next month and the CENVAT Credit of the same is availed by the Appellant while filing the ST 3 return of the half year wherein the said amount paid by the Appellant is also shown as CENVAT Credit in the Cenvat table of the return. The same is also disclosed in ER 1 return by the Appellant. Thus, we observe that the allegation of availment of CENVAT Credit without payment cannot arise as the payment is done within the due date of payment of service tax which is also visible from the table set out in the demand order. We observe that there is no dispute with respect to the genuineness of input servic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... terest as the credit taken by the appellant was not utilized before making the payment of service tax. 6.4. Since there is no irregularity in availment of the credit, no penalty imposable on the appellant and hence the penalty imposed in the impugned order is set aside. 7. In view of the above discussion, we pass the following order: (i) The appellant is eligible to avail the CENVAT Credit of service tax of Rs. 1,35,91,278 - paid by them on RCM basis for Goods Transportation Agency Services and hence the demand confirmed in the impugned order along with interest, is set aside. (ii) The penalty imposed on the appellant in the impugned order is set aside. (iii) The appeal is disposed of on the above terms. (Order Pronounced in Open court on 0 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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