TMI Blog2016 (3) TMI 619X X X X Extracts X X X X X X X X Extracts X X X X ..... nature of input services. Further in this case the tax was paid under Section 66 of the Finance Act, and hence the credit is admissible to the appellant. Further as per the department impugned order though the tax itself was not required to be paid then in that case credit is nothing but a refund of the tax erroneously paid by the appellant in their Cenvat Credit account. Further, in the case of Bajaj Allianz General Insurance (2014 (8) TMI 787 - CESTAT MUMBAI) the bench of this Tribunal by relying upon the judgment of the Supreme Court in the case of CIT vs Mahalakshmi Textile Mills Ltd. (1967 (5) TMI 4 - SUPREME Court ) has held that the Cenvat Credit taken by the appellant is nothing but refund of the service tax paid by them on the services which were not required to pay service tax. The above said decision is squarely applicable in the facts and circumstances of the present case. Further, in this case extended period cannot be invoked as the appellant have been disclosing the credits in their ER-1 returns and they were under a bonafide belief that they are liable to pay tax in terms of Rule 2(1)(d)(iv) and also entitled to take credit and the issue involved in the present ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eal. 3. Ld. Counsel for the appellant submits that the impugned order has been passed mechanically without considering the law, facts and binding case laws and has also ignored the settled illegal principle while rejecting the Cenvat Credit of service tax paid by the appellant and hence the same is liable to be set aside. He further submitted that the impugned order is non-speaking order as the ld. Commissioner has not given any reasoning for denying the credit of service tax paid under reverse charge mechanism for the period 01.01.2006 to 18.04.2006. He further submitted that the appellant were not liable to pay service tax on commission paid to commission agent located outside India under taxable head of 'Business Auxiliary Service' as defined under the Finance Act, 1994 as held by the ld. Commissioner. But since they have paid the service tax on the services rendered by the foreign entity therefore the credit taken was nothing but a refund of the tax erroneously paid by the appellant in their Cenvat Credit account. He further submitted that the appellant have paid service tax after introduction of explanation to section 65(105) of the Finance Act, 1994. Therefore the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion in the relevant provisions of the CENVAT Credit Rules, 2004 and that credit of tax paid on imported services should be allowed if they are in the nature of input services. 4. However, the ld. Counsel for the appellant placed reliance on another CBEC circular no. 345/1/2008-TRU dated 27.06.2008 wherein it has been clarified that credit paid under Section 66A is entitled. The said circular was issued at the time when Rule 3(1) of CENVAT Credit Rules only prescribed for Section 66 and not 66A, i.e. prior to retrospective amendment in Rule 3(1) of CENVAT Credit Rules, 2004. He also submitted that the retrospective amendment in Rule 3(1) of CENVAT Credit Rules to include Section 66A was done as an abundant caution and was made only to ensure that no frivolous objection is raised to deny Cenvat Credit. He also submitted that the findings of the ld. Commissioner is beyond the scope of the show-cause notice because in the show-cause notice only allegation is that credit is not entitled as Section 66A was not mentioned in Rule 3(1) of CENVAT Credit Rules, 2004 and there is no allegation in the show-cause notice that credit is not entitled as tax itself is not payable. In support o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ect from 18.04.2006 and therefore prior to 18.04.2006 no tax could be paid under Section 66A and the charging section for payment of service tax was only Section 66. In support of his submission, he relied upon the following judgments:- CCE vs. Bhandari Hosiery Ltd. 2008 (11) STR 151 Indian National Shipowners Association vs. UOI 2009 (13) STR 235 CCE vs. Lumax Samplip Industries Ltd. 2015 (37) STR 787 CCE vs. Hari Chand Shri Gopal 2011 (1) SCC 236 Parle Agro P. Ltd. vs. CCE 2015 (37) STR 385 7. I have heard the ld. Counsel for the parties and carefully perused the material on record including the circulars issued from time to time by the CBEC and also the judgments cited at bar by both sides. 8. After going through the various circulars and the judgments I find that there is only one charging section in the service tax i.e. Section 66. Section 66A is merely a deeming provision which deems that the services provided by various service providers are provided by service recipients in India. Section 66A is not a charging section and the same has also been made clear by circular 354/148/2009-TRU dated 16.07.2009 and in the said circular CBEC has made ..... X X X X Extracts X X X X X X X X Extracts X X X X
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