Home Case Index All Cases Service Tax Service Tax + AT Service Tax - 2017 (10) TMI AT This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2017 (10) TMI 137 - AT - Service TaxValidity of SCN - Time limitation - whether the show cause notice is validly issued by invoking the extended period of limitation? - Held that: - there is no element of suppression, concealment or any action, inaction on the part of the appellant to evade the payment of duty nor any collusion etc., so as to attract the proviso of Section 73(1) of the Finance Act read with Section 11A of the Central Excise Act. Accordingly, we hold that the show cause notice is bad for invoking the extended period of limitation - as per the show cause notice, Revenue have got all the information from the records maintained by the appellant in the ordinary course of the business. Not a single instance of any manipulation or suppression and/or misinformation have been pointed out, save and except the bald allegations made in the show cause notice. CENVAT credit - whether Service Tax input credit was rightly taken by the appellant during the period from 1st January, 2010 till 29th March, 2010, pending approval of the scheme of the demerger by the Hon'ble High Court, which was approved by the order of Hon'ble High Court dated 19 March, 2010? - Held that: - The transfer of the Cenvat Credit under sub Rule (1) and (2) shall be allowed only if the stock of inputs as such or in process, or the capital goods is also transferred along with the factory or business premises to the new site or ownership and the inputs or capital goods on which credit had been availed of are duly accounted for to the satisfaction of the Deputy Commissioner of Central Excise as the case may be the Assistant Commissioner of Central Excise. Further, Rule (3) of Rule 10 indicates that such transfer will be allowed only when input capital goods in respect of which credit was transferred were also transferred to the transferee - Whereas in the present case, the Cenvat Credit in respect of input services was already consumed to a certain extent before 29 March, 2010 - admittedly the dispute arose because of the order of merger dated 1 February, 2008, allowing merger with effect from the retrospective date 01 April, 2006. However, during the material time when Service Tax was discharged by the appellant RSPL, the same was illegally paid and credited to the Government. As such tax paid on input service was held to be correctly utilized by the appellant in terms of Cenvat Credit Rules, 2004 - in view of the admitted fact on record that part of the credit already stood utilized prior to 29 March, 2010 for discharging of Service Tax levied on output services of the 6/7 outgoing channels. Thus, the demand based on the input credit is wholly untenable and misconceived by the learned Commissioner. Whether Service Tax on Reverse Charge Basis under the classification online information and data access or retrieval services falling under Section 65(105)(zzzzb) have been rightly demanded? - Held that: - the appellant did not provide such service as an output service which was allegation in the show cause notice for demanding duty and as such the demand of ₹ 45 lakhs is not maintainable on this score also. The show cause notice to be not maintainable - appeal allowed - decided in favor of appellant.
|