2016 (8) TMI 881

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..... respondent to establish with documentary evidence that they have availed Cenvat Credit on input services after the date on which they made payment of value for such services and also service tax has been paid to the provider of services before that date. This obligation has clearly been stipulated under Sub Rule (6) of Rule 9. Accordingly, we find that it is necessary to establish the payment of value as well as tax before availing the credit by supporting documentary evidence, as we have seen at least a few instances of availing credit before actual payment. The case has to go back to the original authority for verification of all entries to arrive at a proper decision about the eligibility of respondent for this credit. If the credits ar .....

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..... (A) failed to examine the discrepancies as pointed out in the enquiry report submitted by the Assistant Commissioner regarding respondent availing credit before the payment of service tax. It was also contested that the burden of proving the correctness of credit taken is on the assessee in terms of Sub Rule (6) of Rule 9. In the present case the verification report brought out instances of violation of Sub Rule (7) of Rule 4 to the effect that credit has been availed even before the payment of value of services and the tax payable on the said services. The department also contested the impugned order for non imposition of penalty in the present case. 4. The respondent filed cross objection and the Ld. Counsel for the respondent submitte .....

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..... respondent have availed and even utilized credit before the service tax was paid by them by cheque. In terms of the above legal position it is necessary for the respondent to establish with documentary evidence that they have availed Cenvat Credit on input services after the date on which they made payment of value for such services and also service tax has been paid to the provider of services before that date. This obligation has clearly been stipulated under Sub Rule (6) of Rule 9. Accordingly, we find that it is necessary to establish the payment of value as well as tax before availing the credit by supporting documentary evidence, as we have seen at least a few instances of availing credit before actual payment. The case has to go back .....

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