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2023 (1) TMI 107 - AT - Service TaxCENVAT credit of service tax paid - duty paying documents - service tax on reverse charge basis in respect of ocean freight services - suppression/misdeclaration of facts or not - HELD THAT:- A perusal of the impugned order shows that the order first decides that the appellant are not entitled to cenvat credit invoking Rule 9(1)(bb) of the Cenvat Credit Rules. On that account, the impugned order denies the refund claimed by the appellant. The issue regarding admissibility of credit under Rule 9(1)(bb) has nothing to do with the CGST Act and therefore, the reference made to the larger bench in the case of M/S. BOSCH ELECTRICAL DRIVE INDIA PRIVATE LIMITED VERSUS COMMISSIONER OF G.S.T. AND CENTRAL EXCISE, CHENNAI [2021 (10) TMI 1345 - CESTAT CHENNAI] has no relevance in the instant case. The instant case is solely based on the admissibility of credit under Rule 9(1)(bb). In view of that, it is apparent that the claim of the appellant to avail credit on the strength of Challan of Service Tax paid by them in the capacity of service recipient cannot be denied under Rule 9(1)(bb). Moreover, there is no evidence on record to show that the appellants have engaged in any mis-declaration, suppression etc. especially in view of the fact that the levy of service tax on Ocean Freight itself was held ultra virus by Hon’ble High Court of Gujarat in case of MESSRS SAL STEEL LTD. & 1 OTHER (S) VERSUS UNION OF INDIA [2019 (9) TMI 1315 - GUJARAT HIGH COURT]. It is held that the appellants are entitled to take credit of CENVAT credit paid on ocean freight - matter is remanded to the original adjudicating authority for fresh consideration - Appeal allowed by way of remand.
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