TMI Blog2017 (11) TMI 774X X X X Extracts X X X X X X X X Extracts X X X X ..... as input service is admissible input service in terms of Rule 2(l) of Cenvat Credit Rules, 2004, whether appellant cleared/provided exempted goods/service etc. therefore in absence of examining all these factual aspect revenue neutrality can neither be rejected nor be allowed. Since these factual aspects have not been examined by the adjudicating authority, in the interest of justice, it is desirable to remand the matter to the adjudicating authority. Appeal allowed by way of remand. - ST/07/12 - A/90383/17/STB - Dated:- 26-10-2017 - Mr Ramesh Nair, Member(Judicial) And Mr. Raju, Member (Technical) Shri. Vinay Jain, C.A. for the Appellants Ms. P.V. Shekhar, Joint Commissioner(A.R.) and Shri. M.P. Damle, Asstt. Commisioner(A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... between M/s. Lovells, Lee Lee and M/s. Videocon, (6) Facility Agreement with Common Wealth Bank of Australia dated 4-9-2004 relating to US $ 20 Milliion secured three year terms loan. As per the above agreements in connection with raising funds through ECB and FCCB appellant are recipient of the services from person of outside India. Accordingly, they were required to comply with the provisions of Finance Act, 1994 and rules made thereunder for discharging the service tax. However they have not complied with these provisions nor paid service tax. Accordingly, the show cause notice issued demanding service tax, which was culminated into adjudication order wherein demand of service tax amounting to ₹ 2,08,80,727/- was confi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the banking and other financial service. The service provider have business establishment in India therefore no service tax can be demanded from the appellant. (g) Even though if the service tax is payable, the same is available as Cenvat credit therefore entire exercise is revenue neutral. (h) Computation of tax liability is incorrect on the ground that cum tax value was not considered. (i) Extended period of demand is not invokable, hence the demand is time bar. (j) Since the demand is not sustainable on the above grounds, there is no question of imposition of penalty and interest. In view of the above submissions he placed reliance on the following judgments: (a) Dinesh M. Kotian Vs. Commissioner of Central ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice Tax, Mumbai-I[2015(40)S.T.R. 993(Tri. Mumbai)] (e) Commissioner of Service Tax Vs. ITC Ltd [2014(36)S.TR. 481(Del.)] She further submits that submission regarding revenue neutrality is not acceptable for the reason that liability to pay service tax is independent of availability of Cenvat credit therefore whether Cenvat credit is available or not levy of service tax cannot be avoided. The Larger bench of this Tribunal in case of Jay Yuhshin Ltd Vs. Commissioner of Central Excise, New Delhi [2000(119)ELT 718(Tri. LB)] held that Revenue neutrality is question of fact and has to be established in individual case taking into consideration facts pertaining to the individual case. In the present case appellant have not dischar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tax on their output service/manufactured goods from cash to the extent of amount which is more than the amount of service tax payable on input service during the same period. Whether the service on which service tax is payable and claimed as input service is admissible input service in terms of Rule 2(l) of Cenvat Credit Rules, 2004, whether appellant cleared/provided exempted goods/service etc. therefore in absence of examining all these factual aspect revenue neutrality can neither be rejected nor be allowed. Since these factual aspects have not been examined by the adjudicating authority, in the interest of justice, it is desirable to remand the matter to the adjudicating authority. The adjudicating authority shall pass denovo adjudicati ..... X X X X Extracts X X X X X X X X Extracts X X X X
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