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2019 (8) TMI 1845 - AT - Service TaxNon-payment of service tax on account of payment of Customs duty - non-levy of service tax on the portion of service of Erection, Installation and Commissioning - eligibility for CENVAT Credit - suppression of facts or not - invocation of time limitation - revenue neutrality - HELD THAT:- There are force in the argument of the Ld. Counsel that they had paid the service tax at the relevant time they were entitled for the cenvat credit and since they are paying huge amount of excise duty from PLA there was no gain to the appellant by not paying the service tax, therefore, malafide intention cannot be attributed to the appellant. In the identical situation this Tribunal has considered the limitation aspect in the case of MESSERS JOHN ENERGY LIMITED VERSUS C.C.E. & S.T. -AHMEDABAD-III [2018 (11) TMI 1389 - CESTAT AHMEDABAD] wherein the Tribunal has held that this is a clear case of Revenue neutrality. Accordingly, the nonpayment of Service Tax cannot be said to be with malafide intention. The issue of Revenue neutrality has been considered in various judgments cited by the appellant in particular Larger Bench judgment in the case of JAY YUHSHIN LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE, NEW DELHI [2000 (7) TMI 105 - CEGAT, COURT NO. I, NEW DELHI], according to which if there is a case of Revenue Neutrality the longer period cannot be invoked. There are no suppression of fact or malfide intention for non payment of service tax, therefore, the demand is not sustainable on limitation itself - since, we have deciding the matter on limitation we are not going into the merit of the case. Appeal allowed.
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