TMI Blog2015 (2) TMI 709X X X X Extracts X X X X X X X X Extracts X X X X ..... have utilised the credit for payment of the amount envisaged under section 73A(2). Thus, the discharge of the liability under section 73A(2) utilising cenvat credit was improper and illegal. Consequently, the demand of the department for payment of the liability under section 73A(2) of the Finance Act, 1994, in cash, is correct in law and cannot be faulted. As a consequence, the appellant is also liable to pay interest for the default period during which the amount was not made good in cash. The last issue for consideration is whether the appellant is liable to any penalty. Since the issue related to interpretation of law and there was no intention to evade or avoid payment of tax, there is no warrant to impose any penalty and accordingly, we set aside the penalty imposed on the appellant.Since the appellant has subsequently paid the amount in cash, the appellant would be entitled to restoration of credit which was debited from the cenvat account subject to the condition that the appellant does not claim any refund of the amount paid in cash. Decided against the appellant. - Appeal No. ST/277/09 - A/203/2015-WZB/STB - Dated:- 27-1-2015 - M. V. Ravindran And P. R. Chandrasekh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore, the demand of service tax in cash by the department is clearly unsustainable law. Reliance is placed on the decisions of the Tribunal in the case of Sangam India Ltd. [2012 (28) STR 627 (Tri.-Del)] and Unison Metals Ltd. [2006 (204) ELT 323 (LB)] in support of the above contention. 2.3 In as much as the appellant had discharged the liability, they are not liable to pay an interest and no penalty is imposable in view of the bonafide conduct of the appellant. 2.4 The appellant has sought for refund of the service tax paid in cash which is pending adjudication. In any case, the adjudicating authority should have restored the cenvat credit debited towards discharge of liability which has not been done in the present case. In view of the above, he pleads for allowing the appeal. 3. The Asst. Commissioner (AR) appearing for the Revenue submits that the appellant is not a service provider of any output service as defined in law and therefore, he could not have availed any cenvat credit at all for discharge of liability. Section 73A(2) mandates that any person who has collected any amount which is not required to be collected from any other person, in any manner representing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, that is, the sponsor. If we apply the legal provisions as discussed above to the facts of the present case, it can be clearly seen that the appellant herein was not involved in rendering any output service' nor was he a provider of output service'. 4.3 It is in this factual and legal scenario, the question whether the appellant could have utilised cenvat credit for payment of the amount envisaged in Section 73A (2) has to be considered. The said section envisaged that, - where any person who has collected any amount, which is not required to be collected from any other person, in any manner as representing service tax, such person shall forthwith pay the amount so collected to the credit of the Central Government. 4.4 Further Rule 3(1) of the Cenvat Credit Rules, 2004, envisaged that a manufacturer or producer of final products or a provider of output service shall be allowed to take credit (hereinafter referred to as Cenvat credit) of the duties specified therein . Also Rule 3(4) of the said Rules provided for utilisation of cenvat credit for the purposes of -1) payment of excise duty on any final product; 2) payment of an amount equal to the cenvat cre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ced by the appellant on the decision of the Tribunal on the Unison Metals case, we find that the same is misplaced. In the said case the issue for consideration was whether the amount of 8% debited from the RG 23A Part II in terms of provisions of Rule 57CC(1) and collected from the customers is required to be deposited with the Govt. in terms of the provisions of section 11D of the Central Excise Act. The Tribunal held that since the amount collected was not retained by the manufacturer but had already been remitted to the exchequer, provisions of section 11D are not applicable. That is not the issue before us in the present case. Therefore, the ratio of the said decision has no bearing or relevance. As regards the reliance placed on the Sangam India case (supra), the said decision has been rendered by a Single Member Bench which is not binding on a Division Bench. Secondly, the said decision was based on the decision in the Unison Metals case which we have already held as inapplicable. It is a settled position in law that the ratio of a decision can be applied only when the fact situation obtaining is identical. The hon'ble Supreme Court in CCE Vs. Alnoori Tobacco Products, 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
