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M/s LG Electronics India Private Limited, Bharat Bhushan Sharma Manager Versus Commissioner of Central Excise & Service Tax, Noida

2016 (11) TMI 21 - CESTAT ALLAHABAD

Connivance with service provider for evasion of service tax - availing inadmissible CENVAT credit - Manpower or Supply Agency Services - Extended period of limitation - demand of duty with interest - imposition of penalty - Held that: - the Show Cause Notice did not bring forward any evidence to establish that there has been collusion between the appellant and the service provider for evasion of Service Tax and for availing inadmissible Cenvat credit. Therefore, the invocation of extended period .....

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er for recovery of interest on the said demand is set aside, imposition of penalties set aside - appeal allowed - decided in favor of appellant. - APPEAL No. E/52221 & 52222/2014-EX[DB] - Final Order No. 71003-71004/2016 - Dated:- 3-10-2016 - Mr. Anil Choudhary, Member (Judicial) And Mr. Anil G. Shakkarwar, Member (Technical) Shri Atul Gupta, Advocate & Shri Hrishikesh, Advocate, for Appellant Shri Rajeev Ranjan, Joint Commissioner (AR), for Respondent ORDER Per Anil G. Shakkarwar The presen .....

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to an agreement of 1st March, 2008 with M/s BVI HR Practice Private Limited for supply of Manpower . In the said agreement the appellant inserted a clause that BVI shall obtain various license/registration service etc. required under the Income Tax law applicable on the type of services rendered by them, such as Service Tax and that BVI shall ensure timely and correct payment of tax applicable from time to time and that Service Tax shall be charged on all invoices as per law and that proof of de .....

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issued to the appellant. Investigation was carried out and a Show Cause Notice was issued to the appellant who was recipient of service, as to why, Cenvat credit amounting to ₹ 3,32,76,600/- wrongly availed during the period from April, 2007 to March, 2009 should not be recovered from them under the provisions of Rule 14 of Cenvat Credit Rules, 2004 read with Section 11A(4) of Central Excise Act, 1944. There was a proposal to impose personal penalty on Mr. Bharat Bhushan Sharma, Authorize .....

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ng inadmissible Cenvat credit and as a result extended period was invoked for issue of Show Cause Notice. The Show Cause Notice was issued on 09-05-2012 for the period from April, 2007 to March, 2009. 3. Appellants submitted before the Original Authority that the invoices issued by M/s BVI HR Practice Private Limited were containing all the particulars prescribed under Rule 4(A) of Central Excise Act, 1944 and that appellants paid Service Tax to M/s BVI HR Practice Private Limited for services p .....

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iance with provisions of Rule 4A of Service Tax Rules, 1994 and this is how the document was in conformity with the provisions of Sub-rule 1 of Rule 9 of Cenvat Credit Rules, 2004. They have further submitted that as provided under Sub-rule 7 of Rule of Cenvat Credit Rules, 2004 which provides that credit on input services can be availed once payment has been made on the full value of the service including Service Tax and this is how they were eligible for said Cenvat credit. They have further s .....

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posited with the exchequer and it is not the responsibility of the service receiver to ensure payment of Service Tax by service provider. They have further contended that the extended period of limitation was not admissible to be invoked in the present Show Cause Notice though the allegation was made on the Show Cause Notice that is connivance of the appellant with the service provider but such an allegation has not been supported by any evidence. The Original Authority did not appreciate the su .....

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der-in-Original No. 48-52/Commissioner/Noida/2013-14 dated 29/01/2014, the appellant is before this Tribunal. The grounds of appeal are same as that were stated before the Original Authority. 4. The ld. Counsel for the appellants reiterated the grounds. He has further relied on the ruling by Hon ble High Court of Allahabad in the case of Commissioner of Central Excise & Service Tax Versus Juhi Alloys Ltd. reported at 2014 (302) E.L.T. 487 (Allahabad). In the said case law the Hon ble High Co .....

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the meaning of Rule 9(3) of Cenvat Credit Rules, 2004 it would be contrary to the Rules to casting an impossible or impractical burden of going on the assessee issuing invoices to verify his records. He has further relied on ruling by the Hon ble High Court of Jharkhand at Ranchi in the case of Commissioner of Central Excise, East Singhbhum Versus Tata Motors Ltd. reported at 2013 (294) E.L.T. 394 (Jharkhand). It was submitted that the Hon ble High Court of Jharkhand at Ranchi has held that it i .....

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