TMI Blog2012 (4) TMI 219X X X X Extracts X X X X X X X X Extracts X X X X ..... alue of the bare pipe sent by them to the customers - revenue stated that assessee cannot argue on one hand that they would be eligible for credit in respect of pipes as inputs and on the other hand for payment of service tax value should not be taken into account and they are eligible for refund – Held that:- refund claim was rejected as the appellants have already availed Modvat credit of duty paid on the pipes - the appellants cannot seek double benefit i.e. availment of Modvat credit of duty paid on the pipes as well as not including the value of the pipes in the value of the services to be provided by them - appeal of assessee rejected. - ST/424/2007 - ST/A/69/2012 - CUS. - Dated:- 20-1-2012 - MRS. ARCHANA WADHWA, RAKESH KUMAR, JJ. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the reasoning adopted by the Commissioner (Appeals) for rejection of the refund claim, the relevant portion is being reproduced below:- The appellants have not argued that the credit taken by them in respect of bare pipes have no relation to the service tax payable on the service activity carried out by them and therefore, the tax paid by them in excess of what was payable under Section 67 of the Act should be refunded to them as they have not collected this tax from their clients. While it is true in terms of Section 67 of the Act, service tax is payable only on the gross value charged by the service provider for such services and therefore the question of including the cost of pipes for the purpose of paying service tax would not ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the Appellants have taken credit in respect of the bare pipes and also paid the service tax after including the value of such pipes. If, before the impugned order was passed, had the CCE Indore held that credit in respect of the pipes is not admissible and is therefore required to be paid back, probably the lower authority would have examined the case accordingly and passed a suitable order. As the CCE Indore after taking into account the fact of the matter that credit was taken in respect of pipes and duty was also paid on the value including pipes, took a view that the credit taken by the Appellants is in order and in such a situation the Appellants cannot claim that they would be entitled to refund with reference to the tax paid by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... equired to be added. As such we find no merit in the appellants' submission. 7. However, we also note that the Commissioner (Appeals) has recorded that there is nothing on record to show that the earlier order dated 29.6.2006 which dropped the proposal to deny the credit stands reviewed by the department or not. We find that the learned Advocate appearing before us has not pleaded that the earlier order stands reviewed and reversed by the higher appellate forum. If that be so, we agree with the findings of the Commissioner (Appeals) that the double benefit cannot be extended to the appellants. 8. In view of foregoing discussion, we find no merit in the appeal of the appellant and reject the same. - - TaxTMI - TMITax - Servi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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