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2015 (6) TMI 431 - CESTAT NEW DELHI

2015 (6) TMI 431 - CESTAT NEW DELHI - 2015 (40) S.T.R. 618 (Tri. - Del.) - Denial of CENVAT Credit - output transportation service - Circular No. 97/08/2007 dated 23.08.2007 - Held that:- Since appellant has paid service tax by availing cenvat credit as well as in cash. Therefore, the following decision of the Hon'ble High Court of Karnataka in the case of Motorola India Pvt. Ltd. (2006 (7) TMI 223 - HIGH COURT OF KARNATAKA AT BANGALORE) and as S. Subramanyan & Co. (2014 (3) TMI 316 - GUJARAT HI .....

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The facts of the case are that during the period March, 2005 to March, 2006, the appellant utilized their cenvat credit amount for payment of output transportation service. As there was a Circular No. 97/08/2007 dated 23.08.2007 which directs that on output transportation service the service tax is to be paid in cash. But, the appellant utilized cenvat credit account for payment of the service tax, therefore, proceedings were initiated against the appellant and the adjudicating authority directe .....

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ellant. Both the lower authorities denied the suo moto credit to the appellant, therefore, appellant is before me. 3. Shri K.K. Anand, Ld. Counsel for the appellant appeared and submits that the appellant has paid service tax through their cenvat credit account as well as in cash. Therefore, the service tax has beer paid twice by them and they have taken suo moto credit thereof, In these circumstances, the short issue is for consideration is that the appellant is entitled for suomoto credit or n .....

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) ELT 70 (Tri. Ahmd), CCE, Bangalore-III Vs Motorola India Pvt. Ltd.-2006 (206) ELT 90 (Kar.). He also submits that the Larger Bench decision of this Tribunal in the case of BDH industries Ltd. Vs CCE(Appeals), Mumbai-I-2008 (229) ELT 364 (Tri.-LB) in the said case this Tribunal has not considered the decisions of the Hon'ble High Court of Karnataka in the case of Motorola India Pvt. Ltd. (supra). Therefore, he prayed that issue is no more res integra and impugned order be set aside. 4. On t .....

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, show cause notice required to be issued for taking suo moto credit by the appellant. She also submits that issue has been examined by the Ld. Commissioner in detail and observed as under: On going though the chronology of the case, it is seen that during the period March 2005 to March,2006 the appellant had paid service tax on GTA amounting to ₹ 37.86,455/- by utilizing Cenvat Credit. The department objected to this, issued show cause notice C.No. V(25) 15/Off/Adj-II/JPR-II/228/08/928 da .....

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Commissioner (Appeals) while disposing of the appeal rejected it vide OIA dated 27.11.2012 on the ground that the suo moto re-credit was not allowed. Against the rejection of appeal by the Commissioner (Appeal) vide OIA dated 27.11.2012, the appellants should have filed an appeal before the Tribunal and they might have done so. Rather than enforcing the OIA issued by the Commissioner (Appeal), the Addll. Commissioner issued another show cause notice questioning suo moto re-credit under C.No V.92 .....

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e action of appellant in re-crediting of amount after paying the GTA service tax in cash in compliance with stay order othe Commissioner (Appeal) was wrong and legally incorrect. The stay order only directed the appellants to pay in cash and did not permit re-credit of an equal amount. Therefore, the appeal cannot succeed, hence rejected. 5. She, further submits that the case was relied upon by the appellant are not applicable to the facts of this case as in those cases the issue of availment of .....

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vice. The revenue sought to deny utilization of cenvat credit account for payment of output transportation service. To support this contention the Ld. AR has relied on CBEC Circular No.97/8/2007 dated 23.03.2007. Admittedly, in this case the period in dispute March, 2006 to March, 2007 and CBEC has issued this Circular only on 23.08.2007 which is after the period in dispute. Therefore, the said circular have no relevance to the facts of this case. Further, I am not going into the issue that whet .....

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s Ltd. (supra) wherein this Tribunal has observed as under: Admittedly during the relevant period the appellant paid the service tax by utilizing the credit. When such credit utilization was objected to by the Revenue, they paid the tax in cash and reversed the entries made in the credit account. In fact such reversal of entries amounts to correction of entries and not refund of the tax already paid. With the payment of service in cash, the debit entries already made in credit account for paymen .....

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