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2018 (11) TMI 1228 - CESTAT ALLAHABADBusiness Auxiliary services - RCV would be sold by M/s Tata Sky Ltd. to distributers at concessional rate and same would be further sold by authorized distributer to customers at MRP which was a higher price - discount received and earned by the appellant - Held that:- The distributers were purchasing RCVs from M/s Tata Sky Ltd. at discounted price and selling the same at MRP to the customers and retaining the different between the two as profit - the different between the purchased and sales price is not commission and not covered by ‘Business Auxiliary Service’ - demand set aside. CENVAT Credit - duty paying documents - appellants had availed Cenvat credit of service tax paid by M/s Tata Sky Ltd. through invoices through which RCVs were sold to the appellant - Held that:- Since the appellants were not providing any output service, therefore, they were not eligible for Cenvat credit of ₹ 75,28,164/- - credit not allowed. Penalty - Held that:- On perusal of Sub-rule 3 of Rule 15 of Cenvat Credit Rules, 2004, it is found that the service provider is liable to be imposed with penalty under the said provisions in case of fraud, collusion etc. and if the intention of the service provider is to evade payment of service tax - in the present case, the appellant was not required to pay any service tax. Therefore, the question of intention to evade payment of service tax does not arise - penalty set aside. Appeal allowed in part.
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