TMI Blog2015 (12) TMI 1572X X X X Extracts X X X X X X X X Extracts X X X X ..... is issued for the demand of tax on 11.03.2008 while the fees were paid to various entities during the period October 2004 to September 2006 and the demand of tax was paid on 28.05.2007. We find strong force in the contentions raised by the appellant in as much if the appellant would have taken the plea of limitation, he may have succeeded and no demand of tax would be sustainable on him by applying the judgement of Tribunal in the case of Jain Irrigation Systems Ltd [2015 (9) TMI 160 - CESTAT MUMBAI]. Therefore, we set aside the demand of the interest and the penalties imposed on the appellant by the impugned order which is challenged before us. - Appeal disposed of - ST/318/12 - A/85281/16/STB, M/85282/16/STB - Dated:- 30-12-2015 - M.V. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f service tax liability of ₹ 82,14,570/- for the period post 18.04.2006. He also demanded and confirmed the interest on this amount and imposed equivalent penalty under Section 78 and penalty of ₹ 5,000/- under Section 77 of the Finance Act, 1994. Appellant is aggrieved by the demand of interest and imposition of penalties. Revenue has not preferred any appeal against the impugned order. 5. Learned Counsel would bring to our notice that an identical facts were in the case of Jain Irrigation Systems Ltd, - 2015-TIOL-1674-CESTAT-MUM and this Tribunal vide decision dated 26.05.2015 set aside the interest liability and the penalties imposed only on the ground that the assessee is eligible for CENVAT credit and has availed the sam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unsel on the demand of interest is basically on the ground that the said demand of tax was not sustainable on the ground that the show-cause notice is issued for the demand of tax on 11.03.2008 while the fees were paid to various entities during the period October 2004 to September 2006 and the demand of tax was paid on 28.05.2007. We find strong force in the contentions raised by the learned Counsel in as much if the appellant would have taken the plea of limitation, he may have succeeded and no demand of tax would be sustainable on him. We also find strong force in the contentions raised by the learned Counsel that the issue is now seems to be covered by the judgement of the Tribunal in the case of Jain Irrigation Systems Ltd (supra) {wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by them on 04.02.2010 before the passing of the adjudication order. He stated that the entire exercise is revenue neutral because service tax paid becomes available immediately to them as Cenvat credit. Therefore demand is not sustainable for extended time period and penalty is not imposable in the absence of intention to evade payment of service tax. He relied on the Tribunal judgements in the case of Jay Yushin Ltd 2000 (119) ELT 718 (T-LB) and the case ofBritish Airways 2014 (36) STR 598 (T) = 2014 - TIOL-979-CESTATDEL. The alternate submission is that service tax, in any case, is exempted on transactions undertaken with IFC (International Finance Corporation) because proviso (c) of section 3 of the IFC Act does not impose any restrict ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cheme; (b) Where the Scheme opted for by the assessee is found to have been misused(in contradistinction to mere deviation or failure to observe all the conditions) the existence of an alternate scheme would not be an acceptable defence: (c) With particular reference to Modvat scheme (which has occasioned this reference) it has to be shown that the Revenue neutral situation comes about in relation to the credit available to the assessee himself and not by way of availability of credit to the buyer of the assessee's manufactured goods; (d) We express our opinion in favour of the view taken in the case of M/s. Internation Auto Products (P) Ltd. and endorse the proposition that once an assessee has chosen to pay duty, he has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de to the extent of recovery of interest and imposition of penalties. 7. Appeal allowed in above terms. 7.2 The reliance placed by the learned D.R. on the judgement of Tata Steel Ltd. (supra) may not carry their case any further as we find that the facts of that case are totally different and it is not very clear as to whether the argument of limitation aspect was taken up before the Bench for non sustainablity of the tax demand. In our considered view the ratio of Jain Irrigation Systems Ltd. case (supra) will be applicable in the case in hand as can be seen from the reproduced judgement. Accordingly, we set aside the demand of the interest and the penalties imposed on the appellant by the impugned order which is challenged befor ..... X X X X Extracts X X X X X X X X Extracts X X X X
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