TMI Blog2012 (12) TMI 924X X X X Extracts X X X X X X X X Extracts X X X X ..... non-payment of service tax by the service provider was due to fraud, suppression of facts, intentional contravention of the rules with intent to evade payment of service tax. However, since the service tax demand itself against the service provider was dropped by the original adjudicating authority and that order of the original adjudicating authority was upheld by the Commissioner (Appeals), the department's allegation that non-payment of service tax by M/s. Karanveer Singh was due to fraud, wilful mis-statement, intentional contravention of rules is prima facie not sustainable. The only ground on which the cenvat credit could be denied to the appellant is that after dropping of the service tax demand the service provider has taken its re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... voices issued by M/s. Karanveer Singh as - (a) the invoices have been issued by the service provider after expiry of the 14 days from the date of providing the service, and (b) if in any case, in terms of the Rule 9(1) of the Cenvat Credit Rules, 2004, the invoices issued by the service provider as not valid for cenvat credit as non-payment of service tax was due to wilful suppression of facts, misstatement and contravention of the provisions of the Finance Act, 1994 and the rules made thereunder with intent to evade the payment of tax. The show cause notice besides recovery of service tax alongwith interests also sough the imposition of penalty on the Appellant as well as service provider, M/s. Karanveer Singh and Brothers. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the basis of which cenvat credit was available to the appellant, that there was no wilful suppression of facts, fraud or intentional contravention of the service tax rules, that this is clear from the fact that the department had issued a show cause notice to the service provider and subsequently, the Addl. Commissioner had dropped the proceedings against them and that order of the Addl. Commissioner was upheld by the Commissioner (Appeals), that in view of this, the cenvat credit cannot be denied to the appellant, more so when the service provider has not sought refund of the service tax paid by them, that the proviso to Rule 9(1)(b) cannot be invoked for denying the cenvat credit to the appellant as during the period of dispute Rule 9( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cenvat credit. He, therefore, pleaded that the cenvat credit had been correctly denied and hence, this is not the case for waiver from the requirement of pre-deposit. 5. I have considered the submissions from both the sides and perused the records. The cenvat credit, in question, has been taken on the basis of four invoices issued by M/s. Karanveer Singh Brother in March, 2008 in respect of the services provided by them during the period of June, 2005 till Feb., 2008. Prima facie, the contention of the department that the invoices in question, having been issued after 14 days from the date of providing taxable services are not valid for cenvat credit, does not appear to be correct as these invoices have to be treated as supplementary i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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