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TMI Blog2015 (9) TMI 367X X X X Extracts X X X X X X X X Extracts X X X X ..... n 11A(1) of Central Excise Act, 1944, in addition interest under Section 11AA was demanded, penalty of Rs. 25,000/- was imposed under Rule 15(1) of Cenvat Credit Rules, 2004. 2. The fact of the case is that the appellant is engaged in manufacture of Central Excisable goods 'Automobile Window & Accessories' falling under Tariff item No. 87082900 of the First Schedule of the Central Excise Tariff Act, 1985 and availing Cenvat credit on input and input services under Cenvat Credit Rules, 2004. The appellant supplied inputs to their group company i.e. M/s. Auto Window India Pvt. Ltd. (M/s. AWIPL) for manufacture of intermediate goods on job work basis. The job work goods subsequently used in the manufacture of appellant's final pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... service is taxable then also activity is exempted in terms of Notification No. 8/2005-ST dated 1/3/2005 on the ground that job work is carried out on the material supplied by the appellant and job work goods used in the manufacture of final product i.e. dutiable goods by the appellant and therefore service was exempted under the said notification. When this position is not under dispute there is no question of allegation of suppression of facts on the part of service provider. He further submits that service provider has paid service tax admittedly on insistence of audit officer as the same is admitted in the show cause notice also. After payment of service tax alongwith interest service provider made intimation to the department vide lett ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t covered under the Explanation clause provided under Rule 9(1)(bb) of Cenvat Credit Rules, 2004. 4. On the other hand, Shri. H. M. Dixit, Ld. Asstt. Commissioner (A.R.) appearing on behalf of the Revenue reiterates the findings of the impugned order. He further submits that it is admitted fact that service tax for which appellant has taken the credit was paid by the service provider only after detection by the department and not on their own in regular course. Therefore this itself shows that there is suppression of fact on the part of the service provider and consequently appellant is not entitled for the Cenvat Credit, Cenvat Credit can be availed on supplementary invoices only in the cases where non payment of service tax by service pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... returned to the appellant. Appellant has used the said goods in the manufacture of other final product which has been cleared on payment of duty. Thus job work activity was exempted from payment of service tax. In view of this position when activity itself was not taxable and the appellant has discharged the service tax admittedly due to pointing out by the audit officers no suppression can be alleged. It was also observed that Jurisdictional officer of service provider has not issued any show cause notice to the service provider for recovery of the service tax. Service provider made categorical request for waiver of show cause notice under Section 73(3) of Finance Act, 1994 on the ground that they have paid service tax alongwith interest. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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