TMI Blog2016 (5) TMI 310X X X X Extracts X X X X X X X X Extracts X X X X ..... case of Badrika Motors Pvt. Ltd. Vs. Commissioner of C.Ex. & S. T., Bhopal [2014 (1) TMI 316 - CESTAT NEW DELHI] and Commissioner of Central Excise, Thrupathi Vs. Shariff Motors [2009 (3) TMI 155 - CESTAT, Bangalore]. In the case of Badrika Motors Pvt. Ltd., the Cenvat credit was denied on the GTA service on the ground that the GTA service has no nexus with the taxable service such as Authorized Service Station and Business Auxiliary Service. This Tribunal has held that no arithmetical correlation is required between the input and output services and accordingly the credit was allowed. In the case of Shariff Motors similar facts was involved that the assessee had availed the Cenvat credit in respect of GTA service which is used for transpor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Commissioner (Appeals-I) Central Excise, Pune, whereby the Ld. Commissioner upholding the Order-in-Original No. P-I/ADC/ST/123/2013 dt. 27.12.2013 upheld the disallowance of Cenvat Credit of ₹ 8,74,955/- and recovery of interest under Section 75 of the Act. However set aside the penalty imposed under Section 78 of the Finance Act read with Rule 15 (3) of Cenvat Credit Rules. 2. The fact of the case is that the appellant is engaged in providing the services namely Authorized Service Station, Business Auxiliary Services and Servicing of Motor Vehicles. They are also engaged in trading activity of passenger cars purchased from the manufacturer supplier. The appellant are availing Cenvat Credit on various common input service. Show ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the above cases are identical to the facts in the present case, therefore the ratio of these decisions are applicable in the present case. He further submits that the entire demand is for the period 2008-09 to 2010-11, however the show cause was issued on 5.4.2013 i.e. after more than two years. He submits that Ld. Commissioner (Appeals) while dropping the penalty under Section 78 in para 12 of the impugned order has given a categorical finding that there is no intention to evade payment of service tax and no ingredient such as fraud, collusion, suppression of facts etc. with intent to evade payment of duty is involved in the present case. On the basis of this finding itself, the demand is not sustainable on limitation. Therefore the impug ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ors (supra). In the case of Badrika Motors Pvt. Ltd. (supra) the Cenvat credit was denied on the GTA service on the ground that the GTA service has no nexus with the taxable service such as Authorized Service Station and Business Auxiliary Service. This Tribunal has held that no arithmetical correlation is required between the input and output services and accordingly the credit was allowed. In the case of Shariff Motors (supra) similar facts was involved that the assessee had availed the Cenvat credit in respect of GTA service which is used for transportation of motor cycles from factory to show room which were sold as such and credit was utilized for payment of service tax under authorized service station. The Division Bench has allowed t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vice rendered by them . We are of the view that the learned Tribunal has given correct interpretation and this is one possible interpretation and we cannot substitute by another one. Thus, we do not find any element of law involved for admission of this appeal. Accordingly, the appeal is dismissed. No order as to costs. In view of the above judgments, since the identical facts are involved the appellant is not required to reverse the Cenvat Credit attributed to the trading activity of passenger cars. As regard the judgments relied upon by the Revenue in the case of Mercedes Benz India Pvt. Ltd. (supra). I find that this matter was taken to the Hon ble Bombay High Court when the matter was remanded back to the Tribunal ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct that explanation to Rule 2(e) of the CCR was added w.e.f. 01.04.2011. This is enough to establish that the matter under consideration was not free from doubt and there was indeed an ambiguity in the issue and therefore I find that the charge of intent cannot be leveled against the Appellant. Thus in absence of the ingredient such as fraud, collusion, suppression of facts etc. with intent to evade duty, it is incorrect to impose penalty under Section 78 of the Act read with Rule 15(3) of the CCR. As regards the imposition of penalty under Section 77, I agree with the Ld. Adjudicating Authority. From the above finding, the Ld. Commissioner (Appeals) has conclusively held that in the absence of ingredients such as fraud, collusion, s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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