TMI Blog2015 (7) TMI 1039X X X X Extracts X X X X X X X X Extracts X X X X ..... fter 01/04/2008. Further, it must be kept in mind that taking of credit and its utilization is a substantive right of a taxpayer under value added taxation scheme. Therefore, in the absence of a clear legal prohibition, this right cannot be denied. - In view of the clarification given by the Board, recovery of the CENVAT credit wrongly taken cannot be sustained. What can be demanded is only interest on the wrongly availed credit from the date of utilisation of credit till 01/04/2008 when the assessee became entitled for the credit. Therefore, the adjudicating authority has to re-examine the matter in the light of the CBEC circular dated 21/11/2008. As regards the demand on the airline commission and airline incentive received, the demand has been made under the category of Business Auxiliary Services. These services have been rendered by the appellant to promote the business of the carriers (airlines) and, therefore, the classification under Business Auxiliary Service is prima facie sustainable and on the consideration received, the appellant is liable to discharge service tax liability. With regard to the CCX fee, here also the demand has been made under Business Auxiliar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mentioned at serial No.1, the grounds for denial of CENVAT credit is that the appellant did not maintain separate accounts for the input services used for taxable and exempted services and input service tax credit have been availed/utilised in excess of 20% of the credit taken in contravention of Rule 6(3)(c) of the CENVAT Credit Rules, 2004 and the demand under serial No. 7 has been made on the ground that the invoices bear a different name and address than that of the appellant. While the demand under Sl. No. 2 has been confirmed under CHA Services, the demand under Sl. Nos. 3 to 6 have been confirmed under Business Auxiliary Service. 3. The learned counsel for the appellant makes the following submissions: 3.1. As regards the CENVAT credit availed, the learned counsel submits that from the work orders available with them they can show that the credit has been availed only in respect of taxable services and not in respect of exempted services and, therefore, the provisions of Rule 6(3) will not come into operation. Secondly it is his contention that the 20% cap has to be computed on the total service tax payable during the period and not on 20% of the input services ava ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... there is a decision in favour of the appellant in the case cited supra, the demand is not sustainable. 3.4. As regards the airline commission, the commission is received from the airline for booking of cargo space and collection of charges for cargo space under the IATA agency agreement and the commission is received from the airline as a percentage of the freight amount charged. The appellant s contention is that they are not promoting or marketing the business of the appellants and, therefore, they do not come under the purview of the Business Auxiliary Service . 3.5. Regarding the airline incentives, this incentive is given by the airline to the appellant for achieving agreed volume/target of cargo during a specific time and the incentive is given to promote the airline s business. The contention of the appellant is that the same cannot be considered as liable to service tax. 3.6. CCX fee: Service tax demand on this charge is made under the category of Business Auxiliary Service . This fee is charged by the assessee from the foreign principal for the purpose of delivering the documents to the customers in India, to collect freight charges due to the overseas com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be considered was whether this credit balance should be allowed to be utilized for payment of service tax after 01.04.2008. As no lapsing provision was incorporated and that the existing Rule 6(3) of the CENVAT Credit Rules does not explicitly bar the utilization of the accumulated credit, the department should not deny the utilization of such accumulated CENVAT credit by the taxpayer after 01/04/2008. Further, it must be kept in mind that taking of credit and its utilization is a substantive right of a taxpayer under value added taxation scheme. Therefore, in the absence of a clear legal prohibition, this right cannot be denied. In view of the above clarification given by the Board, recovery of the CENVAT credit wrongly taken cannot be sustained. What can be demanded is only interest on the wrongly availed credit from the date of utilisation of credit till 01/04/2008 when the assessee became entitled for the credit. Therefore, the adjudicating authority has to re-examine the matter in the light of the CBEC circular dated 21/11/2008. 5.2. Coming to the issue relating to break bulk fee and freight rebate, in view of the decision of this Tribunal in the appellant s own cas ..... X X X X Extracts X X X X X X X X Extracts X X X X
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