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2015 (10) TMI 1855 - CESTAT NEW DELHI

2015 (10) TMI 1855 - CESTAT NEW DELHI - 2015 (40) S.T.R. 1135 (Tri. - Del.) - Availment of CENVAT Credit input services - service tax paid on the Activity of providing/selling SIM cards/recharge coupons was availed and utilized for payment of service tax on commission income under Business Auxiliary Service - Penalty under Section 76 - Held that:- the service tax paid by M/s Aircel Digilink India Ltd. Co. was on services which were clearly neither provided to the appellant/assessee nor were el .....

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such ₹ 2,000/- under Rule 15 (3) ibid Decided in favour of Revenue. - APPEAL NO. ST/543 OF 2009 & 804 OF 2010 - FINAL ORDER NO. 52725-52726 OF 2015 - Dated:- 14-8-2015 - SHRI G. RAGHURAM AND SHRI R.K. SINGH, JJ. For The Appellant : Shri S.S. Dabas, Advocate For The Respondent : Smt. Suchitra Sharma, Authorized Representative (Jt. CDR) ORDER Per. R.K. Singh :- The assessee has filed appeal against Order-in-Revision dated 16/10/2009 in terms of which the following order was passed by Co .....

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of Finance Act, 1994. (ii) I order for recovery of wrongly availed inadmissible Cenvat credit of ₹ 5,86,904/- (including the service tax credit of ₹ 61,794/- wrongly utilized) during the period from October, 2005 to March, 2006 under Rule 14 of Cenvat Credit Rules, 2004 read with Section 73 of Finance Act, 1994 alongwith interest under Section 75 of Finance Act, 1994. (iii) I impose a separate penalty of ₹ 10,000/- under Rule 15 (3) of Cenvat Credit Rules, 2004. Rest part of t .....

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Cards/recharge coupons and was receiving commission for the same, but did not pay service tax under Business Auxiliary Service. It also took Cenvat credit amounting to ₹ 1,10,105/- during the period 10/02/2005 to September 2005 and ₹ 5,75,496/- during the period October 2005, to March, 2006. This credit was taken in respect of service tax paid by M/s Aircel Digilink India Ltd. Co. The primary Adjudicating Authority held that the assessee was not receiving any service from M/s Aircel .....

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r the period from 10th February, 2005 to September, 2005 and ₹ 5,75,496/- wrongly availed during the period October, 2005 to March, 2006 from M/s Omar Agencies (Hutch), Banda under Section 73 of the Finance Act, 1994 read with Rule 14 of the Cenvat Credit Rules, 2004 and Section 11A of the Central Excise Act, 1944 alongwith interest on the above amounts under Section 75 of the Finance Act, 1994 read with Section 11AB of the Central Excise Act, 1944. 2. I order recovery of Cenvat credit amo .....

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vide order dated 28/03/2008 rejected the assessees appeal holding that the impugned credit taken by the assessee was not admissible on the ground that this credit was taken in respect of services which were not input services for the assessee. The assessee filed an appeal before CESTAT against the said order and CESTAT vide order dated 19/08/2008 passed the following order :- "As we find that the original authority has decided the issue of taxability also and since the issue is at the root .....

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g selling SIM cards/recharge vouchers in lieu of certain commission was not taxable under Business Auxiliary Service and, hence, service tax is not leviable on the assessee. 5. Revenue is in appeal against the said order-in-appeal. 6. We have considered the submissions of both sides. 7. As regards the leviability of service tax under Business Auxiliary Service on the commission received by the assessee from M/s Aircel Digilink India Ltd. Co. for providing/selling the SIM card/recharge vouchers, .....

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n Daya Shankar Kailash Chand v. CCE & ST [Final Order No. ST/A/55023/2013 (PB), dated 18-12-2012]. The appeal filed against the judgment of Daya Shankar Kailash Chand (supra) was dismissed by Hon'ble Allahabad High Court 2014 (34) S.T.R. J99 (All.). Therefore, the Revenues appeal is not sustainable as regards the leviability of service tax on the assessee under Business Auxiliary Service is concerned. 8. As regards the appeal of the assessee against the Order-in-Revision, it is evident t .....

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services which were clearly neither provided to the appellant/assessee nor were eligible to be called input service in its (appellant/assessees) respect. Thus it is clear that the service tax credit of ₹ 1,10,105/- and ₹ 5,86,904/- taken by the assessee was clearly in violation of the Cenvat Credit Rules, 2004. However, other than merit it is seen that the Order-in-Revision under Section 84 of Finance Act, 1994 (as it stood during the relevant time) was passed on 16/10/2009 while the .....

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peals). We find that the Commissioner (Appeals) in the Order-in-Appeal dated 28/03/2008 has clearly noted that he was confining himself to determine the issue involved in the show cause notice viz. availability of service tax credit to the appellants in facts and circumstances of the case. The Commissioner (Appeals) then decided the issue holding that the impugned credit was not admissible to the appellant. Evidently in view of the aforesaid factual matrix and by virtue of Section 84 (4) ibid as .....

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