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2018 (10) TMI 394 - CESTAT NEW DELHICENVAT Credit on retained amount - credit of service tax paid on input services - certain percentage of the stipulated payment was withheld by the respondent on account of the performance guarantee - whether the said retention prohibits the respondent from taking the Cenvat Credit in accordance of Rule 4 (7) of Cenvat Credit as is alleged by the Department? Held that:- Rule 4 (7) of CCR stands amended w.e.f. 1st April, 2011 and after the said amendment taking of Cenvat Credit is not linked with the payment of invoice to the service provider but it is linked with the invoice/bill/challan of input service - Though the grievance of the Department seems that irrespective, the payment was still to be made within 3 months, but I observe that since the respondent had paid the entire Service Tax on which they were liable for taking the credit i.e. on the amount as mentioned in the Bill/invoice, they were entitled to avail credit. It has already been decided by this Tribunal itself in the case of appellant itself COMMISSIONER OF CENTRAL EXCISE & ST, UDAIPUR VERSUS M/S. HINDUSTAN ZINC LTD. [2018 (7) TMI 522 - CESTAT NEW DELHI], wherein the assessee was held entitled to avail the credit of full Service Tax paid irrespective the amount payable to the service provider has been withheld till the service provider has not changed. The circular No.122/03/2010- ST dated 30th April, 2010 further clarifies the situation that the Service Tax paid is allowed as credit. Credit allowed - appeal dismissed - decided against Revenue.
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