TMI Blog2016 (6) TMI 622X X X X Extracts X X X X X X X X Extracts X X X X ..... htly higher tax liability, for the same period, of ₹ 3,89,86,389/- along with interest thereon. Cenvat Credit - appellant was entitled to avail Cenvat credit on documents evidencing receipt of eligible inputs, capital goods or input services , even before the date they obtained service tax registration. They can very well adjust part or whole of their service tax liability by utilization of such credit availed, subject to the relied upon invoices/ documents evidencing sufferance of tax/duty found to be otherwise eligible for such availment pe se for the purposes of Cenvat Credit Rules, 2004. There is no justification for equal penalty under section 78 of the Finance Act, 1994; the same requires to be set aside, which we hereby do. We however do not interfere with the penalties imposed under Sections 76 and 77(1) (a) ibid. - Decided partly in favor of assessee. - Appeal No. ST/118/2012 - Final Order No. A/30497/2016 - Dated:- 3-6-2016 - Ms. Sulekha Beevi, C.S. Member ( Judicial ) And Mr. Madhu Mohan Damodhar, Member ( Technical ) Shri B.Venugopal, Advocate for the Appellant Shri Prabhu Dass Puli, AR for the Respondent ORDER [ Order per: Madhu Mohan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of registration, the appellant had informed the Service Tax authorities that they are in the process of finalizing the tax liability to be paid and would be discharging the same. They had discharged entire service tax liability with interest prior to issue of show cause notice and in terms of Section 73(3), the show cause notice itself has been issued sans locus. The demand is also barred by limitation since there never was any suppression, mens rea or malafide intention on their part. There is no legal bar for availing the Cenvat credit based on credit documents prior to the date of obtaining service tax registration and the contrary decision of the adjudicating authority in this regard is misconceived and without legal basis. He finally submits that since the appellant has not separately collected service tax from their members, the gross amount indicated in the invoice should be treated as inclusive of service tax. The learned advocate submitted copies of case laws in support of their contentions. 5. The learned AR, Shri G Natarajan, submitted that the adjudicating authority had analysed all aspects of the case and had issued a well-reasoned order, which does not call for i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee in question entitling him to avail of Cenvat credit on cenvatable documents evidencing inputs or capital goods or input services received by such assessee during the same period, of course subject to the conditionalities envisaged in the Cenvat Credit Rules, 2004. The maxim Ubi Jus Ibi Remedium -There is no wrong without a remedy, will find application for this interpretation. We find that Rule 3(4) of the said Rules relied upon by the adjudicating authority merely puts a cap on the credit that be utilized for payment of duty or tax, not on the quantum that be availed. 7. We find that this view finds sustenance in the case of Commissioner of ST, Chennai Vs Verizon Data Services India Ltd -2015(39)STR 522(Tri-Chennai), the Hon ble Tribunal observed that I have considered submissions on both sides. I find force in the argument of respondent that as pointed out by Hon. Karnataka High Court there is nothing in CCR, 2004 to restrict taking of credit only for services received after the date of registration especially in a situation where provider of service is exporting the services and is not required to pay service tax. I note that Rule 4 of Service Tax Rules is applic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... horities. Therefore, the case is remanded to lower adjudicating authority only for the limited purpose of verification of veracity and genuineness of the duty paid nature and receipt of the goods in factory. The penalty and various other ancillary matters are linked with the above aspect. If it is found that the duty paid character and receipt of the goods in doubt, the lower adjudicating authority may decide the penalty aspect. The appellants are directed to produce relevant documents before lower adjudicating authority. Needless to say that the appellant should be granted reasonable opportunity of hearing. The assessee s appeal is allowed by way of remand. Revenue s appeal is accordingly disposed off. Cross Objection is also disposed off for purpose of record . iii) In the case of C.Metric Solution(P)Ltd. Vs CCE, Ahmedabad the Hon ble Tribunal has observed that The first issue is whether the appellant was eligible for the Cenvat credit when they have not taken registration and the Cenvat credit taken by them for the period 1-11-2008 to October 2009 can be allowed. For this purpose, the appellant had relied upon the decision of the Tribunal in the case of J.R. Herbal Care In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ; 4,36,985/- is accumulated Cenvat credit. The Tribunal has categorically held that even though the export of software is not a taxable service, but still the assessee cannot be denied the Cenvat credit. The assessee is entitled to the refund of Cenvat credit. Similarly, in so far as refund of Cenvat credit is concerned, the limitation under Section 11B does not apply for refund an accumulated Cenvat credit. Therefore, bar of limitation cannot be ground to refund Cenvat credit to the assessee. In so far as requirement of registration with the department as a condition precedent for claiming Cenvat credit is concerned, learned counsel appearing for both the parties were unable to point out any provision in the Cenvat Credit Rules which impose such restriction. In the absence of a statutory provision which prescribes that registration is mandatory and that if such a registration is not made the assessee is not entitled to the benefit of refund, the three authorities committed a serious error in rejecting the claim for refund on the ground which is not existence in law. Therefore, said finding recorded by the tribunal as well as by the lower authorities cannot be sustained. Accordi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the amount is collected for the provision of services, the total compensation received should be treated as inclusive of service tax due to be paid by the ultimate customer of the services unless service tax is also paid by the customer separately. So considered, when no tax is collected separately, the gross amount has to be adopted to quantify the tax liability treating it as value of taxable service plus service tax payable . - This finding of the tribunal was upheld by the Supreme Court in the case of Commissioner Vs Advantage Media Consultant [2009(14)STR J49(SC)]. - Further, in the case of Robot Detective Security Agency vs CCE, Chennai [2009(14)STR 689(Tri-Che), the tribunal held that in case where an assessee providing taxable service charged the gross value without indicating the service tax element separately, the taxable value realized has to be treated as inclusive of service tax due. This principle applied to cases even before an explanation to Section 67 was introduced to remove the doubts in this regard . - In P.Jani Co Vs CST, Ahmedabad[2010(20)STR 701(Tri-Ahm), it was held that cum tax value has to be adopted when tax is not collected separately in vi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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