9911796707
TMI Blog2025 (4) TMI 510X X X X Extracts X X X X X X X X Extracts X X X X ..... by the appellate authority has upheld the orders in original No.133/2010 dated 24.12.2010 and 91 & 92/2011 dated 20.09.2011 of the adjudicating authority, while adjudicating three SCNs, covering the periods 01.10.2002 to 31.03.2007; 01.08.2007 to 31.03.2008 & 01.04.2008 to 31.03.2009 respectively, and confirming the demands of service tax payable as indicated therein, under Section 73(2) of the Finance Act 1994 (Act in short) read with proviso to section 73(1) of the Act along with applicable interest and imposing penalties under Section 76, and 78 of the Act as well as Rule 15 of the Cenvat Credit Rules, 2004, as more specifically indicated in the respective Orders in Original. 2. Brief facts are that the appellant is engaged in providing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing Service and in as much as the handling of export cargo was excluded from the ambit of Cargo Handling Service, the cenvat credit of input services availed by the appellant were in fact utilized for non-taxable output service. Thus, the Department was of the view that the cenvat credit taken by the appellant, being ineligible input cenvat credit, was liable to be recovered from the appellant. 3. Therefore, the SCNs pertaining to the period 01.08.2007 to 31.03.2008 & 01.04.2008 to 31.03.2009 also contained proposals for recovery of such ineligible cenvat credit in addition to the proposal to demand service tax on the charges that were not included in the taxable value of cargo handling service. The SCN for the period 01.10.2002 to 31.03.2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... those sections and has struck down the said Rule 5(1) as bad in law. The above judgement was upheld by the Hon'ble Supreme Court in the case of UOI -Vs- Intercontinental Consultants and Technocrats Pvt. Ltd 2018 (10) GSTL 401 (SC). It is his submission that this Tribunal has been consistently holding that such a demand is not permissible in view of the ruling of the Hon'ble Supreme Court judgement in the case of UOI -VS- Intercontinental Consultants and Technocrats Pvt. Ltd. 2018 (10) GSTL 401 (SC) and also the judgement of the Hon'ble Madras High Court in the case of CST-Vs Sangamitra Services Agency 2014 (33) STR 137 (Mad). 5. As regards the availment of ineligible Cenvat Credit the Ld. Counsel contends that the Lower Authori ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... opped. Similarly, penalty ought not to have been imposed as the issue involved is one of interpretation. 6. Learned Authorised Representative, Shri. N. Satyanarayana appeared for the Department and reiterating the findings in the impugned order in appeal. The learned A.R. submits that the appeal be dismissed. 7. We have heard both sides, perused the appeal records and the case laws cited by the appellants. The two issues that arise for consideration are the tenability of service tax demand invoking rule 5(1) of the Service Tax (Determination of Value) Rules, 2006 (Valuation Rules) and requiring the appellant to include the reimbursed expenditures or costs incurred in the course of providing taxable services, and whether the demand of cenv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... we are of the considered view that the findings in the impugned order in appeal confirming the demand on non-inclusion of reimbursable charges cannot sustain and are liable to be set aside. As regards the issue of cenvat credit availed and which has been utilized for payment of service tax on services that are non-taxable, we are of the view that the said issue also stands decided in the appellant's favour in light of the Hon'ble Apex Court decision in CCE, Vadodara v Narmada Chematur Pharmaceuticals Ltd, 2005 (179) ELT 276 (SC), wherein the wrongly availed cenvat credit was utilized for payment of excise duty, the Hon'ble Apex Court has held that the consequences of payment of excise duty after availing modvat credit was revenue neutral a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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