TMI Blog2013 (3) TMI 495X X X X Extracts X X X X X X X X Extracts X X X X ..... tice for demanding the service tax which was initially short paid along with interest and penalty and also for denying the Cenvat credit taken on such services for the reason that these services could not be considered as input services. Held that:- Tribunal finds that It is no longer res integra that service tax could not have been demanded from service recipient prior to 18-4-2006. So demand for service tax in this case is not maintainable. Further the argument adopted for denying Cenvat credit also is not correct for the reason that the relevant provision in Cenvat Credit Rules, 2004 as provided in Rule 9(1). Tribunal do not see any merits of the argument of Revenue and hence the appeal is allowed by setting aside the impugned orders ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on account of wrong Cenvat credit to Rs. 6,72,290/- in respect of services availed prior to 10-9-2004, that is the date on which Cenvat Credit Rules, 2004 were notified; (iii) Corresponding Interest and penalties were also agitated in this appeal. 6. The Counsel for appellants submit that Bombay High Court, in the case of Indian National Shipowners Association v. UOI - 2009 (13) S.T.R. 235 (Bom.) has held that prior to 18-4-2006 service tax could not have been demanded in the hands of service recipient because the provisions of Rule 2(1)(d)(iv) was ultra vires the provisions of Finance Act, 1994. So the demand prior to that date is not maintainable and the tax paid by the appellants is refundable to them. He concedes that the appellants ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Credit Rules, 2004 as provided in Rule 9(1) is as under : 9. Documents and accounts. - (1) The CENVAT Credit shall be taken by the manufacturer or the provider of output service or input service distributor, as the case may be, on the basis of any of the following documents, namely :- (a) --- (f) an invoice, a bill or challan issued by a provider of input service on or after the 10th day of September, 2004; or 11. The criterion prescribed was with reference to date of the invoice and not with reference to date on which service was provided. It is also relevant that Revenue has not been able to prove that the service was in fact provided prior to 10-9-2004. It is very difficult to decide the point at which any service is provid ..... X X X X Extracts X X X X X X X X Extracts X X X X
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