TMI Blog2018 (1) TMI 1054X X X X Extracts X X X X X X X X Extracts X X X X ..... be availed on service tax / duty when the documents evidence the payment of the same. Since the documents on which credit has been availed does not evidence the payment of service tax, we are of the view that the credit availed is incorrect - demand upheld. CENVAT credit - rent-a-cab service - Held that: - During the relevant period, prior to 1.4.2011, the definition of input services included the words activity relating to business . Therefore, the definition had wide ambit and had included the services namely rent-a-cab service - In Commissioner of Central Excise, Raipur Vs. Beekay Engg. & Castings Ltd. [2009 (6) TMI 96 - CESTAT, NEW DELHI], the said services have been held to be eligible for credit - the disallowance of credit is unjustified. CENVAT credit on capital goods imported during the period January 2007 - Held that: - According to Rule 4(2) of CENVAT Credit Rules, 2004, credit can be availed not exceeding 50% of duty paid on capital goods in the same financial year and the balance amount of CENVAT credit has to be availed in the subsequent year. Therefore, availment of entire credit in the same financial year is irregular - The appellant has not contested the sam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (4B) of Rule 6 of Service Tax Rules, the assessee having centralized registration can adjust excess amount paid during the month towards the service tax liability of the succeeding month without any monetary limit. In the case of an assessee who do not have centralized registration, the monetary limit for such adjustment of service tax is ₹ 50,000/-. The Tribunal in the above cases has observed that refusing adjustment against tax liability during other months amount to collection of tax without authority of law which is contrary to Article 256 of Constitution of India. That there is no condition in Rule 6(4A) r/w Rule 6(4B) requiring the assessee to opt for centralized registration to avail the adjustment facility. 2.2 The second issue is with regard to the non-payment of service tax under the category of sponsorship service. He submitted that the appellants have donated some amount as charity but the same was shown in the books as sponsorship services. He submitted that the appellant is not contesting the demand on this issue. 2.3 The third issue is on irregular availment of CENVAT credit of input services. The appellant had taken CENVAT credit on service tax paid by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7.1 Sub-rule (2) of Rule 6 prescribes the manner of payment of service tax, which according to this sub-rule is to be paid with the banks notified by the C.B.E. C. for this purpose in TR-6 form or, in any other manner as prescribed by the C.B.E. C. Sub-rule (3) of Rule 6 covers a situation where an assessee had received payment for certain services to be provided and had paid the service tax on it, but for some reasons, he could not provide the services wholly or partly and according to this rule, the assessee can adjust the excess payment of service tax calculated on pro rata basis against his service tax liability for subsequent period if he has refunded the value of taxable service along with service tax to the person from whom it was received. Thus, the sub-rule (3) provides for limited facility of adjustment in the cases where the amount has already been received by an assessee for the service to be provided and tax leviable thereon had been paid, but subsequently, due to some reasons, the service was not provided either in full or in part. Sub-rule (4) of the Rule 6 provides for provisional assessment, in the case where the assessee for any reason is unable to correctly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lved. For example, if against actual payments of ₹ 4 crore received by an assessee in a particular month against services provided, on which his service liability @ 10% adv. is ₹ 40 lakhs, he has paid tax of ₹ 50 lakhs on the basis of his estimated receipt of rupees five crores during the month, the excess tax payment of ₹ 10 lakh paid is like an advance payment of tax whose incidence has not been passed on to his customers. In fact, w.e.f. 1-3-2008, sub-rule (1A) of Rule 6 has been introduced by Notification No. 4/2008-S.T., dated 1-3-2008 which also provides that without prejudice to the provisions of sub-rule (1) of Rule 6, every person liable to pay service tax may, on his own, pay an amount as service tax in advance to the credit of Central Government and adjust the amount so paid against service tax liability, which he is liable to pay in subsequent period, subject to the condition that he intimates the details of the amount paid in advance to the Jurisdictional Superintendent of Central Excise. The excess payment referred to in sub-rule (4A), read with sub-rule (4B), is like advance payment under sub-rule (1A) of Rule 6. There is no condition in Rule ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich credit has been availed does not evidence the payment of service tax, we are of the view that the credit availed is incorrect. The demand raised on this issue is sustained. 5.3 An amount of ₹ 84,740/- has been disallowed being the credit taken on service tax paid on rent-a-cab service. The credit has been disallowed stating that rent-a-cab service is not used for providing output service. The appellant has explained that they are providers of telephone services and rent-a-cab service was used for transportation of employees and executives. During the relevant period, prior to 1.4.2011, the definition of input services included the words activity relating to business . Therefore, the definition had wide ambit and had included the services namely rent-a-cab service. In Commissioner of Central Excise, Raipur Vs. Beekay Engg. Castings Ltd. 2009 (16) STR 70 (Tri. Del.), the said services have been held to be eligible for credit. From the above discussions and following the decision, we are of the view that the disallowance of credit is unjustified and requires to be set aside, which we hereby do. 5.4 The appellant has availed credit on capital goods imported during th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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