TMI Blog2015 (9) TMI 101X X X X Extracts X X X X X X X X Extracts X X X X ..... ecovery of tax, interest and penalty till disposal of the appeal. - Stay granted. - Application No. ST/S/95774/14 Appeal No. ST/87801/14 - Stay Order No. S/357/2015-WZB/STB - Dated:- 24-12-2014 - Anil Choudhary, Member (J) And P S Pruthi, Member (T),JJ. For the Appellant : Shri S P Seth, Adv. For the Respondent : Shri K S Mishra, Addl. Commr (AR) ORDER Per: Anil Choudhary: The appellant M/s Ganpati Zilha Krishi Audyogik Sarva Seva Sahakari Society Ltd. have filed the present appeal being aggrieved by Order-in-Original No. KIP-EXCUS-000-COM-022-13-14 dated 14.03.2014 whereby CENVAT Credit availed by the appellant in respect of Lease Rent paid to the Bank for the Sugar factory belonging to the Borrower M/s Tasgaon SS ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... x, Education Cess, Income Tax, etc. Clause 4(a) of the agreement further provides that the Lessor has and shall continue to have mortgage, charge, hypothecation and encumbrances in or upon the Immovable Properties and the Plant and Machinery, unless and until the entire principal, interest, additional amount towards contingencies, further costs, expenses, interest as provided by SARFAESI Act or otherwise are full paid, realized, satisfied and received by the Lessor . Clause 4(e) provides the rent accrued as per the present Lease Deed shall be appropriated and applied towards satisfaction of the dues of M.S.C. Bank on account of the Borrower . 2.1 Further fact is that as agreed by the Lessor Bank and the appellant Lessee, as Service Tax ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of Service Tax. He further contends that challan is one of the document as provided under clause (f) and (g) of Rule 9A of the Service Tax Rules, 1994. He further urges that as the tax has been deposited in the name of original owner, who was a registered dealer and also the premises are belonging to him and the Bank is only exercising the powers of the owner as a Trustee under the provisions of SRFAESI Act. This legal position is further clear from sub-section (8) of Section 13 of the SRFAESI Act which provides that if the dues of the secured creditor together with all costs, charges and expenses incurred by him are tendered to the secured creditor asset shall not be sold or transferred by the secured creditor, and no further step shall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ies i.e. Bank and the appellant and the arrangement has been made between them that the appellant lessee may pay and take credit of the Service Tax on the lease rent. Accordingly, the challan should have been rightly denied. In the facts and circumstances, the credit taken by the appellant on the basis of challan in question is not a valid document in terms of Rule 9(1)(f) of the Cenvat Credit Rules, 2004. The learned DR also relies on the ruling in the case of Maharashtra State Co-op Bank Ltd. vs. Commissioner of Central Excise Service Tax, Kolhapur, wherein the Tribunal has allowed waiver of pre-deposit on the ground that credit had been allowed (CENVAT Credit) on the basis of documents, which were not prescribed under Rule 9(1) of Cenv ..... X X X X Extracts X X X X X X X X Extracts X X X X
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