TMI Blog2023 (12) TMI 252X X X X Extracts X X X X X X X X Extracts X X X X ..... lized for discharge of any excise duty on the final goods manufactured and cleared by the appellant. Revenue Neutrality - HELD THAT:- The plea of Revenue neutrality is strong plea, as in this case also credit is available to the appellant on Service Tax paid under reverse charge mechanism can be utilized for discharge of excise duty and hence there can be no reason to avoid Service Tax liability - the appellant is a manufacturer of dutiable goods and the Service Tax paid on services provided by foreign service-providers would have been available to them as Cenvat credit under the Cenvat Credit Rules, 2004 leading to a revenue neutral situation. In the facts and circumstances of this case, it is improper to allege that the appellant did not pay service tax with an intent to evade payment of Service Tax. Penalty - HELD THAT:- The penalty has been imposed by the Ld. adjudicating authority with the finding that the appellant had not deposited service tax on the basis of own ascertainment and that it was only after the department letter they deposited - the very SCN was issued on 28.01.2010 for which the compliance was already made by the appellant on 24.11.2007 by way of pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le to pay Service tax on such services under the category of Banking and Financial Services. During the investigation the appellant were issued a letter dated 31.10.2007 to inform as whether they have obtained Service tax registration as contemplated under Section 69 of the Finance Act, 1994 and whether they have paid service tax at the rate specified under Section 66A of the Finance Act, 1994 and filed the prescribed returns. In reply to the said letter, appellant vide their letter dated 26.12.2007 informed that they had raised the finance through FCCB ECB and has discharged their Service tax liability alongwith interest on 24.11.07 for the transaction made with ICICI Bank Ltd., Bahrain. After detail investigation show cause notice dated 28.01.2010 was issued to the appellant for recovery of Service tax alongwith interest and penalties. In adjudication, Ld. Commissioner vide Order dated 23.03.2010 dropped the demand of Service tax of Rs. 1,48,83,228/- and confirmed the demand of Service tax of Rs. 1,37,51,388/- and ordered for its appropriation. He also imposed penalties on the appellant. Being aggrieved by the said Order appellant filed appeal before the Tribunal and vide final ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... liance on the following judgments: PGP Glass Pvt .Ltd. Vs. CCE ST, Surat-II, Appeal Nos. 10873 of 2013 decided on 14.07.202023 BASF India Ltd. Vs. CCE ST Surat II, Service tax appeal No. 11873 of 2013-DB decided on 21.06.2023. Sarovar Hotels Pvt. Ltd. Vs. Comm. Of ST, Mumbai -2018(10)GSTL 72 (Tri.-Mumbai) Chiripal Polyfilms Ltd. Vs. CCE ST, Vadodara-I- 2022(67)GSTL 454(Tri. Ahmd) Commissioner of Service tax Vs. Reliance Communications Ltd. 2019(22) GSTL 203 (Tri. Mumbai) EMI Transmission Ltd. Vs. CCE 2019(20)GSTL 259 (Tri. Mumbai) Bharat Aluminium Co. Ltd. Vs. CCE, Raipur ,2021(375)ELT 379 (Tri. Del.) Reliance Securities Ltd. Vs. Comm. Of ST, Mumbai II, 2019(20)GSTL 265(Tri.-Mumbai) Hyundai Motor India Pvt. Ltd. Vs. Commr. Of C.Ex ST., LTU, Chennai -2019(29)GSTL 452 (Tri. Chennai) Nirlon Ltd. Vs. CCE, Mumbai 2015(320)ELT 22 (SC) Mahindra Mahindra Ltd. Vs. CCE. Mumbai 2019(368)ELT 105. 2.2. She also argued that as per Section 73(3) of the Finance Act, where any Service tax is paid by the assessee on his own ascertainement before the service of show cause notice, then the central excise officers shall not serve any no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... osmic Dye Chemical Vs. CCE, Bombay 1995(75)ELT 721(SC) Pushpam Pharmaceuticals Company Vs. CCE, 1995(78)ELT 401(SC). 3. On other hand Shri Rajesh Nathan Learned Assistant Commissioner (AR) appearing on behalf of revenue reiterates the finding given in the impugned order. 4. We have considered the submission made by both the side and perused the record. The issue involved in this case is only related to the penalties imposed by the Ld. Adjudicating authority. It is admitted fact on records that the appellant herein had discharged the Service Tax liability along with interest before receipt of the show cause notice. It is also undisputed that the Service Tax liability under RCM has arisen on the ground of appellant being the recipient of services of Banking and Financial Services from an overseas banks. Understandably, Service Tax paid on such services rendered would be available to the appellant themselves as Cenvat credit which can be utilized for discharge of any excise duty on the final goods manufactured and cleared by the appellant. On the factual matrix as noted hereinabove, we find that the issue is to be decided in favour of the appellant, as regards penalty impo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6. In the case of Essar Steel Ltd. - 2009 (13) S.T.R. 579 (Tri.-Ahmd.) also, in the case of ECB Facility, this Tribunal took a view that when the situation is revenue neutral and the appellant manufacturer is entitled to Cenvat credit, it cannot be said that there was an intent to evade duty and extended period can be invoked. 7. In view of the precedent decisions discussed above which are applicable to the facts of this case, we find that penalty imposed on the appellant cannot be sustained. Therefore, the penalty imposed upon the appellant is set aside and Stay Petition as well as the appeal are disposed off in above terms. 4.2 We also find that penalty has been imposed by the Ld. adjudicating authority with the finding that the appellant had not deposited service tax on the basis of own ascertainment and that it was only after the department letter they deposited. We find that the very SCN was issued on 28.01.2010 for which the compliance was already made by the appellant on 24.11.2007 by way of payment of tax and interest. The only grievance of revenue is that the appellant-assessee has not deposited service tax on their own ascertainment. We find that when the tax ..... X X X X Extracts X X X X X X X X Extracts X X X X
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