TMI Blog2016 (6) TMI 20X X X X Extracts X X X X X X X X Extracts X X X X ..... 12 - CESTAT, MUMBAI], the Tribunal has already held that where credit is available to another unit of the same company, the situation was revenue neutral and the allegation of suppression with an intention to evade payment of duty could not have been sustained. Therefore, the allegation of suppression with the intention to evade payment of tax not being sustainable, the Revenue was not justified in contending that the appellant was hit by the bar under Section 73(4). In this view of the matter, the benefit under Section 73(3) ought to have been extended to the appellant and no notice should have been issued to it. Also the entire amount of interest paid by the appellant is a cost to the company in a situation where otherwise there can be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed in the manufacture of the said goods. They paid Sales Commission for its exported products to their Commission Agents (who did not have any offices in India). The period involved is from October 2007 to August 2011. The appellant was liable to pay Service tax under the category of Business Auxiliary Services under the reverse charge mechanism u/s. 66 (A) of the Finance Act, 1994, though the services for Commission Agents, when used in respect of exported products were exempt from payment of service tax by virtue of Notification No. 41/2007 dated 06.10.2007 as amended by Notification No. 12/2008 dated 01.04.2008 and subsequently vide Notification No. 18/2009-ST dated 07.07.2009. The appellant not having primarily fulfilled the procedur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erse charge mechanism under the category of :Business Auxiliary Services . She vehemently argued that Show Cause Notice should only be issued in case of misstatement or suppression of facts or contraventions of any of the provisions of the Act or of the rules made thereunder with an intention to evade payment of service tax. 4. She further submits that the entire dispute is revenue neutral, since the appellant would in any case be entitled to avail credit of the entire service tax amount paid by them and that there was no occasion to invoke extended period of limitation. In support of her submissions, the ld. counsel relied on the following decisions:- i. Sterlite Industries (India) Ltd. Vs. CCE, Vapi-2005 (192) ELT 852 (Tri. Mum.) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... along with interest had been deposited before issuance of the Notice, I am of the view that the appellants submission that they were eligible for the benefit of the exemption notification and hence, no service tax whatsoever was payable, need not be examined. 8. It is an undisputed position that the entire amount of service tax, paid under the reverse charge mechanism in respect of commission agent service was immediately available to the appellant as Cenvat credit. Given this undisputed fact, the contention of the appellant that there was no intention to evade payment of duty has considerable force. In the appellants own case (when it was known as Sterlite Industries (India) Ltd.) reported at 2005 (192) ELT 852 (Tri-Mum), the Tribuna ..... X X X X Extracts X X X X X X X X Extracts X X X X
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