Home Case Index All Cases Service Tax Service Tax + AT Service Tax - 2020 (11) TMI AT This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2020 (11) TMI 34 - CESTAT NEW DELHIValuation - Includability of diesel, explosives etc. supplied free of cost, in the value of taxable services - Denial of CENVAT credit - excess availment of credit in the absence of bills/challans - non-reversal of credit availed on ‘tippers’ - Demand of interest on suo-moto reversal of credit by the Appellant - extended period of limitation. Valuation - includability of diesel, explosives supplied free of cost in the value of taxable services provided by the Appellant - HELD THAT:- The explosives and accessories and diesel would be supplied by SCCL - Learned Counsel for the Appellant is, therefore, justified in asserting that the explosives and diesel were received by the Appellant free of cost and the learned Authorized Representative of the Department is not justified in asserting that the agreement would indicate that the said materials were received cost by the Appellant but for a consideration and not free of cost - demand set aside. CENVAT Credit - excess availment of credit - HELD THAT:- The Commissioner has concluded that the invoices furnished by the appellant did not add up to the amount of credit claimed to have been availed in September, 2009. This, according to the Appellant, was an absolutely presumptive and inconsequential finding since the Department had disputed the credit only for the reason that there was a difference between the opening stock and the closing stock. The order passed by the Commissioner does not take into consideration the explanation offered by the Appellant and only some invoices were examined by the Commissioner - matter remitted to the Commissioner to determine this particular issue afresh in the light of the charge leveled in the show cause notice and the explanation offered by the Appellant. Whether credit is admissible ‘tippers’ as inputs under rule 2(k) of the Credit Rules? - HELD THAT:- In SOUMYA MINING LTD. VERSUS CCE, RAIPUR [2017 (6) TMI 1071 - CESTAT NEW DELHI], the Tribunal held that even for the period prior to June, 2010 credit was admissible on ‘tippers’ as ‘inputs’ used by the service provider in providing output services. This view was followed by the Tribunal in CCE, CCG & ST, DELHI – III VERSUS M/S BHARMAPUTRA INFRASTRUCTURE LTD. [2018 (7) TMI 438 - CESTAT NEW DELHI] - thus, credit had been correctly availed by the Appellant as ‘tippers’ qualify as ‘input’ under rule 2(k) of the Credit Rule - The demand that has been confirmed cannot, therefore, be sustained and is liable to be set aside. Demand of Interest on suo-moto reversal of credit by the Appellant - HELD THAT:- When credit was reversed by the Appellant without utilization, no interest can be recovered from the Appellant - demand of interest set aside. Extended period of Limitation - HELD THAT:- It is not necessary to examine the contention raised by the Appellant that the extended period of limitation could not have been invoked. Appeal allowed in part and part matter on remand.
|