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2015 (9) TMI 1333 - CESTAT NEW DELHI

2015 (9) TMI 1333 - CESTAT NEW DELHI - 2015 (323) E.L.T. 414 (Tri. - Del.) , 2015 (40) S.T.R. 155 (Tri. - Del.) - Waiver of pre deposit - CENVAT Credit - credit on the basis of supplementary invoices for payment of service tax - revenue contended that since service provider has paid the service tax on account of non-levy or non-payment or short payment or short levy of service tax by the reason to fraud, collusion, wilful mis-statement or suppression of facts or contravention of any provisions o .....

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e appellant. Even the order-in-original besides repeating the allegations contained in para 4 of the show cause notice does not give any details. On the other hand, the appellant have made inquiries with certain service providers which have been placed on record which indicate to the contrary. - appellant have strong prima facie case in their favour, and hence, the requirement of pre-deposit of CENVAT Credit, demand, interest and penalty is waived for hearing of the appeal and recovery thereof i .....

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ty paid on inputs and capital goods and of service tax paid or input services in terms of provisions of CENVAT Credit Rules, 2004. During the above mentioned period of dispute, they took CENVAT Credit of ₹ 3,97,25,526/- on the basis of the invoices of a number of input service providers. The department has alleged that the invoices on the basis of which CENVAT Credit has been taken are supplementary invoices for payment of service tax which had been evaded, and therefore, the provisions of .....

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or contravention of any provisions of the Finance Act, 1944 or of the Rules, made therein with intent to evade the payment of service tax. The department has alleged that the service tax whose credit had been taken is the tax which had been evaded by the service providers. It is on this basis that after issue of show cause notice, the Commissioner vide order-in-original dated 28/5/2014 has confirmed the above mentioned CENVAT Credit demand along with interest and has imposed penalty of equal am .....

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ued to the service providers by the department, it has been ascertained that show cause notices regarding demand had been issued to the service providers under Proviso to section 73 (1) of Finance Act, 1994 and the demands against service providers have been confirmed under proviso to section 73 (1) and penalty under section 78 of the Finance Act, 1994 has also imposed, no details of such show cause notices issued to the service providers and the adjudication orders passed by the concerned adjud .....

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ENVAT Credit, in question, had been taken, were invoices under which the duty evaded by the service providers had been paid, is factually incorrect, more so, when absolutely no details of the show cause notices issued to service providers and the orders-in-original passed against the service providers have been given in the show cause notice or provided to the appellant and that in view of this, the appellant have strong prima facie case in their favour and hence, the requirement of pre-deposit .....

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AT Credit Rules, 2004. In this regard, clause (bb) of Rule 9 (1) is reproduced below: [bb] a supplementary invoice, bill or challan issued by a provider of output service, in terms of the provisions of Service Tax Rules, 1994 except where the additional amount of tax because recoverable from the provider of service on account of non-levy or non-payment or short-levy or short-payment by reason of fraud or collusion or wilful mis-statement or suppression of facts or contravention of any of the pro .....

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