TMI Blog2013 (7) TMI 466X X X X Extracts X X X X X X X X Extracts X X X X ..... d., Singapore in connection with purchase of Nickel - Appellant availed Cenvat Credit of the said Service Tax even though they had not received physical delivery of the Nickel in their factory - Services were utilized for trading activity but were not used directly or indirectly in manufacturing activity - Held that:- As per the decision in COMMISSIONER OF C. EX., JAIPUR-I Versus PUSHP ENTERPRISES [2010 (11) TMI 835 - CESTAT, NEW DELHI], the ER-1 Returns disclosed the availment of Cenvat Credit but since there is no requirement for enclosing the invoices or giving the details of such credit - Once ER-1 Return is filed, even though it is filed under self-assessment system, the officers are supposed to scrutinize the same – Appellant taken ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ance Act, 1994 read with Rule 2(d )( iv) of Service Tax Rules, which was paid as recipient of services on commission paid to foreign agents M/s. Matrix Resources PTE Ltd., Singapore in connection with purchase of Nickel. It was noticed that the appellant had availed Cenvat Credit of the said Service Tax even though they had not received physical delivery of the Nickel in their factory. It appeared that such services were utilized for trading activity but were not used directly or indirectly in manufacturing activity and hence the said services were not input services and Cenvat credit of service tax paid on such services was not admissible. Therefore, a Show-cause notice F.No.V.72/03-92/SCN-DEM/09-10 dated 26.08.2009 was issued to the appel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dy paid and appropriated, but disputed the interest and penalty imposed on the ground of limitation as well as there being no provision under Central Excise Act, 1944 and the Rules made there-under. The First Appellate Authority did not agree with the contentions of appellant and concurred with the adjudicating authority and upheld the demand of duty as well interest thereof and also the penalties. 4. The ld. Counsel for the appellant draws attention to the fact that show-cause notice was issued on 26/08/2009 while improper utilization for availment of Cenvat Credit was for the period 2006-07 and 2008-09. It is his submission that the show-cause notice dated 26/08/2009 is time barred. It is his submission that though initially they had no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in this case is availment of cenvat credit of service tax paid by appellant on the commission given to the commission agent situated abroad discharge of tax by appellant under reverse charge mechanism. Such cenvat credit liability fell on appellant as per provision 66A of the Finance Act, 1994 which mandated that recipient would pay the service tax. The appellant availed cenvat credit of such service tax, presuming that the activity of paying commission to a person situated abroad would be in relation to the business. The appellant paid commission to the foreign national for procurement of Nickel which was imported and sold by the appellant as a trading activity, though they had intended to use the same in future business. At this juncture ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the ratio. The ratio of the decision of the Tribunal is respectfully reproduced: "In these cases, there is no dispute about the fact that the ER-1 Returns had disclosed the availment of Cenvat Credit but since there is no requirement for enclosing the invoices or giving the details of such credit or neither such details were given nor the invoices were enclosed. However, once ER-1 Return is filed, even though it is filed under self-assessment system, the officers are supposed to scrutinize the same. Just because the respondent had taken Cenvat credit in respect of certain input services, which according to the Department was not admissible to them, it cannot be concluded that the credit had been taken knowing very well that the same was ..... X X X X Extracts X X X X X X X X Extracts X X X X
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