TMI Blog2015 (4) TMI 576X X X X Extracts X X X X X X X X Extracts X X X X ..... t in India, therefore, the entire service tax so paid would have been admissible as Cenvat Credit and refundable to the appellant as per the provisions of Rule, 5 of the Cenvat Credit Rules, 2004. In the case of Commissioner of Central Excise Chandigarh Vs. Dharampal Satyapal [2008 (11) TMI 581 - CESTAT NEW DELHI] was relied upon the appellant. In this case appeal filed by the Revenue was rejected by holding that on the grounds that in a case of Revenue neutrality demand does not survive - service tax payable under Section 66A of the Finance Act 1994 was also admissible to the appellant as Cenvat Credit. As appellant is only an exporter of services and availing Cenvat Credit the same would have been admissible as refund under Rule 5 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ising Services, Business Auxiliary Services, IT and Software Services etc. That appellant also received certain services from the service providers situated abroad under business auxiliary services and business support services, and service tax has to be paid under Section 66 A of the Finance Act 1994 effective from 19.04.2006 as it was not clear whether services received by a person residing in India from a service provider situated abroad will be taxable in India. 3. Learned Advocate argued that appellant was not providing any services in India and was getting refund of service tax under Rule, 5 of the Cenvat Credit Rules for services availed by them for export of services. He furnished a chart of such refund claims which are being san ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Commissioner of Central Excise, New Delhi 2005 (183) E.L.T. 241 (S.C.) (b) Commissioner of Central Excise, Mumbai Vs. Mahindra Mahindra Ltd. 2005 (179) E.L.T. 21 (SC) 6. Heard both sides and perused the case records, the issue involved in the present proceeding is whether the demand issued to the appellant is required to be set-aside on grounds of Revenue neutrality and limitations. It is the case of the appellant that appellant is covered as an exporter of services under the Export of Services Rules, 2005 and no services are provided by the appellant in India. It is observed from the case records that appellant has been getting refund claim from July 2006 onwards under Rule 5 of the Cenvat Credit Rules 2004. Any service tax payable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th sides, we find that the unbranded pan masala was admittedly being used captively in the manufacture of branded pan masala, which was being cleared on payment of NCCD. Apart from the fact that whether such consumption, which only requires packing unbranded pan masala in polythene pouches carrying brand name would amount to manufacture or not, we find that the entire exercise is revenue neutral, whatever duty was payable (if at all) on the unbranded pan masala was available as modvat credit to the appellant to be utilised for payment of NCCD on branded pan masala. It is seen that the appellant had paid more duty on the branded pan masala than the duty required to be paid on the unbranded product. As such, we are of the view that the entire ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t case the issue before Hon ble Apex Court was regarding manufacture and clearance of Kimam without payment of duty. In the present case, it is not a case of manufacture clandistine removal of goods, but admissibility of Cenvat Credit to the appellant for which appellant was also eligible for refund under Rule, 5 of the Cenvat Credit Rules, 2004. Further Apex Court in the relied upon case law remanded the case back to the Tribunal to examine the case, where it was open for the assessee to contend the extended period of limitation. It is a well established concept that invokablity of extended period has to be seen from the facts of each case. In the present proceedings before the Bench, it is observed that there can not be any intention to ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
