TMI Blog2016 (7) TMI 1208X X X X Extracts X X X X X X X X Extracts X X X X ..... ax. Regarding GTA services, appellant failed to produce documents showing how much of it was for inward transportation of inputs and how much for outward transportation of finished products. The appellants have rightly taken CENVAT credit of ₹ 12,19,140/- on the basis of debit notes and ₹ 4,24,878/- on the basis of e-payment challans and disallow CENVAT credit taken on GTA services of ₹ 87,132/- The question of penalty does not arise as the appellants have not concealed any material facts from the Respondent. - Decided partly in favor of assessee. - E/2739/2011-SM - Final Order No. 20563 / 2016 - Dated:- 15-7-2016 - Shri S. S. Garg, Judicial Member Ms Preetha, Adv For the Appellant Mr. Pakshi Rajan, A.R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... VAT of service tax paid on these services. In view of these facts, a show-cause notice was issued to the appellant for claiming CENVAT credit of service tax amounting to ₹ 12,19,140/- on the strength of debit notes and to the extent of ₹ 5,12,010/- on the strength of e-payment challans issued by their Head-office. A show-cause notice was issued on the ground that these documents on the basis of which the appellant has taken credit are not proper documents for availing CENVAT credit as per Rule 9 of the CENVAT Credit Rules. The show-cause notice was culminated into order-in-original wherein the adjudicating authority confirmed the demand along with interest and penalties. Thereafter an appeal was filed before Commissioner (Appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ell as beyond the well settled principles of law. He also submitted that in fact, management consultant services were received by the appellant from its parent company located out of India which did not have any office in India and therefore the appellant paid service tax under Section 66A of the Finance Act and availed CENVAT credit on the basis of e-payment challan which is a valid document under Rule 9(1) of CENVAT Credit Rules 2004 for availing CENVAT credit. The learned counsel further submitted that GTA services were used for both inward as well as outward transportation of inputs and finished products as the terms of sale by the appellant was on FOR basis. On the other hand the learned A.R. reiterated the findings of Commissioner (Ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Every scheme of amalgamation has to necessarily provide a date with effect from which the amalgamation/transfer shall take place. The scheme concerned herein does so provide viz. January l, 1982. It is true that while sanctioning the scheme it is open to the Court to modify the said date and prescribe such date of amalgamation/transfer as it thinks appropriate in this facts and circumstances of the case. If the Court specifies a date, there is little doubt that such date would be the date of amalgamation of transfer. But where the Court does not prescribe any specific date but merely sanctions the scheme presented to it - as has happened in this case - It should follow that the date of amalgamation/date of transfer is the date specifie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ess carried on by the transferor company (subsidiary company) should be deemed to have been carried on for and on behalf of the transferee company. This is the necessary and the logical consequence of the Court sanctioning the scheme of amalgamation as presented to it. The order of the Court, sanctioning the scheme, the filing of the certified copies of the orders of the Court before the Registrar of Companies, the allotment of shares etc. may have all taken place subsequent to the date of amalgamation/transfer, yet the date of amalgamation in the circumstances of this case would be January l, 1982. This is also the ratio of the decision of the Privy Council in Raghubar Dayal v . Bank of Upper India Ltd. - AIR 1919 PC 9. Further, in vi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o. 41 42/2013 dated 07.02.2013 has allowed the availment of CENVAT Credit by the appellant on the strength of e-payment challans for the subsequent period from December 2009 to August 2010. 4. Therefore keeping in view the aforesaid facts, I partly allow the appeal of the appellant and hold that the appellants have rightly taken CENVAT credit of ₹ 12,19,140/- on the basis of debit notes and ₹ 4,24,878/- on the basis of e-payment challans and disallow CENVAT credit taken on GTA services of ₹ 87,132/- The question of penalty does not arise as the appellants have not concealed any material facts from the Respondent. By the impugned order, appellants have been imposed penalty on the ground of suppression of facts whereas ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
