TMI Blog2014 (10) TMI 773X X X X Extracts X X X X X X X X Extracts X X X X ..... nts did not make a clear claim that they had selected invoices randomly and on the basis of these certificates, all the credit taken in respect of common input services have to be treated as correct and the invoices have to be considered as ones relating to services classifiable under services listed in Rule 6(5) of CENVAT Credit Rules, 2004. In such a situation, the observation of the Commissioner that the appellants are eligible only to this extent cannot be faulted with. At the same time, we also have to take note of the fact that the audit observation was based on 1% of the samples and there is no clear finding that these are not common input services. Instead it appears that Department is attempting reclassification of the input services to arrive at this conclusion. - Matter remanded back - Decided in favour of assessee. - ST/3565/2012-DB - Final Order No. 20913/2014 - Dated:- 27-5-2014 - SHRI B.S.V. MURTHY AND SHRI S.K. MOHANTY, JJ. For the Appellant : Mr.S. Ananthan, CA For the Respondent : Mr. R. Gurunathan, Addl. Commissioner (AR) JUDGEMENT Per : B.S.V.MURTHY This appeal has been filed by the appellant against Order-in-Original No.115/2012-ST ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with respect to other services. The bank produced CA certificate also the sample copies of the invoices to substantiate its contentions. The assessee bank had also pleaded that the show-cause notice issued in this regard is barred by limitation. Since the bank had acted on a bona fide faith the provisions of penalty are not attracted. 2.4 The learned Commissioner did not accept some of the contentions of the appellant. He gave relief partially. In his order dated 27.9.2012, the demand in respect of alleged excess utilization of CENVAT Credit was reduced to ₹ 81,23,732/- from ₹ 2,15,14,945/- and the demand in respect of wrong classification of services u/r 6(5) was reduced to ₹ 20,62,224/- from ₹ 56,68,210/-. He further demanded interest u/s 75 and imposed penalty of ₹ 81,23,732/- + ₹ 20,62,224/- u/r 15(4) of the CENVAT Credit Rules, 2004 read with Section 78 of the Finance Act, 1974. Aggrieved by this order, the appellant has preferred this appeal. 3.1 We heard both the sides in great detail. As regards demand on the ground that the appellants had utilized more than 20% of the service tax payable from CENVAT Credit account, the appellants ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4 50 37 542 93 75 763 3 56 61 779 1 00 09 844 3 49 68 962 4 49 78 806 3 56 61 779 93 17 027 1 03 44 067 3 68 255 90 07 508 93 75 763 9 68 304 20.82% Nov'05 4 34 23 556 87 47 854 3 46 75 702 93 17 027 4 00 64 635 4 93 81 662 3 46 75 702 1 47 05 960 9 68 304 96 84 496 63 143 86 84 711 87 47 854 19 04 945 20.15% Dec'05 5 46 62 507 1 10 22 285 4 36 40 222 1 47 05 961 3 94 10 494 5 41 16 455 4 36 40 222 1 04 76 233 19 04 945 1 20 54 296 89 784 1 09 32 501 1 10 22 285 29 36 956 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 24 40 591 1 26 70 834 32 34 917 20.37% Jun'06 6 17 09 476 97 47 672 5 19 61 804 7 65 152 5 83 67 844 5 91 32 996 5 19 61 804 71 71 192 32 34 917 65 12 755 1 00 283 96 47 389 97 47 672 15.80% Jul'06 5 69 41 404 64 87 565 5 04 53 839 71 71 192 5 27 22 136 5 98 93 328 5 04 53 839 94 39 489 64 87 565 1 67 718 63 19 847 64 87 565 11.39% Aug'06 5 51 80 978 75 82 503 4 75 98 475 94 39 489 5 24 60 940 6 19 00 429 4 75 98 475 1 43 01 954 75 82 503 2 23 47 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on and the appellants have followed the law as they have understood and therefore in respect of this amount, the appellants have made out a case complete in their favour. 3.3 The second demand has arisen because the claim of the appellants that the invoices related to common input services has not been accepted by the Revenue. Learned CA submitted that appellants had produced three CA certificates covering substantial portion of the invoices related to common input services and the Commissioner has given the benefit of treatment of common input services only in respect of these invoices and not in respect of balance invoices which had not been verified by the CA. For ready reference, text portion of one of the certificates is reproduced below. We have verified the copies of invoices made available by M/s. Canara Bank for the period 2005-08 with the soft copy of the CENVAT data provided by the Bank to the Service Tax department (bearing S. No. assigned by department) in order to ascertain the correct nature of service for which the service providers have billed M/s. Canara Bank. Based on our verification of these invoices and explanation given by M/s. Canara Bank, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... accepting this offer and requesting for closure of the case. According to the calculation submitted, the total amount payable comes to ₹ 3,71,501/- for the normal period. As regards interest, the CA submitted that interest may be held payable only for one month in view of the fact that they had continuous excess carryover of cash in their PLA account from November 2009 onwards and on going through the submissions, we find that from November 2009 till September 2013, the appellants always made excess payment and such excess payment always remained with the Government and this runs into crores. He submitted that this has happened because the appellants have a centralized registration and they always make provisional payment and always make excess provisional payment. In view of the above, we accept their submission that the interest liability also can be calculated only for one month. We also agree that the sentiment expressed in the letter even though they do not agree with the contention of the Department, in order to cooperate with the Department and buy peace and to bring an end to the litigation which involves very small amount, the appellant has chosen to pay the same. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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