TMI Blog2017 (9) TMI 1069X X X X Extracts X X X X X X X X Extracts X X X X ..... e and the matter is remanded back to the Original Adjudicating Authority. Appeal allowed by way of remand. - ST/56561 & 57269/2013 (DB) - ST/A/55859-55860/2017-CU[DB] - Dated:- 16-8-2017 - Mr. D.N. Panda, (Judicial Member) And Mr. Ashok K. Arya, (Technical Member) Present Shri J.K. Mittal, Shri Rajeev Singh, Advocate for the appellant Present Shri Ranjan Khanna, DR for the respondent ORDER Per: Ashok K. Arya 1. These two appeals are against Order-in-Original No.191/2012 dated 28/12/2012, whereunder inter alia along with penalties recoveries of Cenvat credit of ₹ 89,25,821/- and ₹ 1,09,70,221, and recovery of service tax of ₹ 9084/- have been confirmed. 1.1. One appeal has be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which are not used for taxable output services; c. Non-payment of service tax on excess baggage charges; d. Non-payment of service tax on value of tickets issued prior to 01.05.2006 but used on or after said date; e. Non-payment of service tax on transport of import cargo by air. iii. Based on above the department issued show cause notice (SCN) dated 16/04/2010 to M/s Japan Airlines International Co. Ltd. demanding recovery of following; a. ₹ 8925,821/- along with interest as wrongly taken Cenvat credit. b. Demand of recovery of cenvat credit of ₹ 1,09,70,221/- along with interest on wrongly availed credit of service tax on input services which are not used for provision of taxable output se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... able prior 01.05.2006 whereas demand is entirely for the post that period except the period 2004-2005, which is a meager amount. Therefore, the allegation is not sustainable (except for ₹ 95,974/- relating to 2004-05) as it is on the basis of surmises. ii. The input services which are alleged to be inadmissible on the face of it are input services and directly related to the business of the Appellant. The department completely failed despite examination of service tax returns and entire records and detailed scrutiny of that part reflected in the service tax return as exempted service; and from where the figures have been obtained by department and on what basis such computation has been made. iii. The entire proceeding is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut adducing any evidences, in these circumstances, extended period otherwise also not applicable. v. Interest of ₹ 7,07,704/- lakhs is not sustainable as it is admittedly for the period prior to due date of 30th June, whereas even if computation error is assumed in following Rule 6(3)/(3A), even then interest is only payable after 30 th June. vi. So far as demand of ₹ 8,906/- in respect of excess baggage, the issue is covered in the favour of the Appellant (Ref: Kingfisher Airlines Ltd. Vs Commissioner of Service Tax, Mumbai, 2016(41) STR 76(Tri-Mum). vii. Since demand on account of Cenvat credit is not sustainable, hence penalty could not be levied. 8. Ld. DR for the revenue Reiterates the findings gi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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