TMI Blog2016 (8) TMI 895X X X X Extracts X X X X X X X X Extracts X X X X ..... e fact of payment of service tax by the service provider. Remedy of the Revenue lies at the hands of the service provider and not at the hands of the service recipient. Further, the provisions of Rule 15(2) cannot be invoked as the issue was of credit on input services as held in the case Davangere Sugar Company Vs CCE Bangalore II 2011 (2) TMI 553 - CESTAT, BANGALORE – no penalty imposed – decided in favor of appellant. - E/3125/2011-SM - Final Order No. 20647/ 2016 - Dated:- 18-8-2016 - Shri S. S. Garg, Judicial Member Mr Ajayan T.V. Adv For the Appellant Mr Parashiva Murthy, A.R. For the Respondent ORDER Per S. S. Garg The present appeal is directed against the order-in-original dated 17.10.2011 passed by le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... emanded and recovered under Rule 14 of CENVAT Credit Rules 2004 read with proviso to Section 73 of Finance Act and penalty was proposed under Rule 15(4) of CENVAT Credit Rules 2004 read with Section 78 of Finance Act and interest was also demanded. The appellant controverted the allegation in the show-cause notice and submitted that they have rightly availed the CENVAT Credit as they are entitled to avail the same as per the provisions of CENVAT Credit Rules. They further submitted that if there is a delay in depositing the service tax by the service provider then the Revenue should proceed against the service provider and not the appellant. The learned Commissioner vide impugned order dropped the proceedings against the appellant but impos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ance with the provisions of Rule 4(7) of CENVAT Credit Rules 2004. He further submitted that the adjudicating authority has dropped the demand against the appellant based on facts, then there does not arise a question of the appellant being liable to be penalized for delayed payment of service tax by the service provider. The Revenue s remedy lies only at the end of the service provider for recovery of interest for delayed payment of service tax and the appellant cannot be penalized for any default of the service provider. In support of these submissions, he relied upon the following case laws: 1) GM, BSNL Vs CCE Lucknow [2014(36)STR 445(Tri-Del)] 2) Adecco Flexione Workforce Solutions Ltd Vs CCE Cus ST Bangalore LTU [2015(40)S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dit of the same without finding whether such service tax paid by him to the service provider stands further deposited by him to the exchequer. It is neither possible nor practical for any service recipient to verify the fact of payment of service tax by the service provider. Remedy of the Revenue lies at the hands of the service provider and not at the hands of the service recipient. Further, I find that the imposition of penalty under Rule 15(2) is also not legal in view of the judgment in Davangere Sugar company cited supra. 3. In view of the above I find that the impugned order is not sustainable in law and therefore I set aside the same and allow the appeal with consequential relief if any. ( Order pronounced in open court on ) ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
