TMI Blog2018 (5) TMI 603X X X X Extracts X X X X X X X X Extracts X X X X ..... SCN was issued to the appellant by invoking the extended period while it is on record that appellant had regularly filed the monthly returns with the authorities indicating there on the availment of CENVAT credit for particular month - demand is time barred. Penalty - Held that: - since demand is time barred, penalty also do not arise. Appeal allowed - decided in favor of appellant. - E/777/2011 - A/30468/2018 - Dated:- 20-2-2018 - MR. M.V. RAVINDRAN, MEMBER (JUDICIAL) AND MR. C.J. MATHEW, MEMBER (TECHNICAL) Shri G. Prahlad, Advocate for the Appellant. Shri Dora Reddy, (AR) for the Respondent. [Order per: M.V. Ravindran] This appeal is directed against Order-in-Original No. 26/2010 (S. Tax.) dated 30.11.2010. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the service tax liability as per the provisions of Central Excise Rules, 2002 and that they are eligible to avail CENVAT credit of such service tax paid. It is his submission that there is no dispute as to eligibility to avail CENVAT credit, the impugned order confirming the demand for reversal is incorrect and needs to be set aside as held by the Tribunal in the case of Emerson Innovation Center, Pune Vs. CCE, Pune [2016-TIOL-3217-CESTATMum]. It is his further submission that interest is not payable as they have not used to CENVAT credit availed as the credit lying in the balance was far in excess of the credit availed by them. On limitation he would submit that the judgment of Hon ble High Court of Allahabad in the case of CCE, Noida Vs. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e rejection of refund to the extent of ₹ 17,57,529/- was upheld by the Ld. Commissioner on the admitted fact that at the time of taking credit the service charges and service tax thereon was not paid but it is also accepted that the same has been paid subsequently. In our view at the time of sanction of refund when the service charges and service tax stood paid to the service provider the refund cannot be denied for the reason that the appellant was not entitled for the CENVAT credit initially. But after payment of service charges and service tax to the service provider they became entitled for the CENVAT credit and the sanction of refund claim thereafter cannot be disputed. The decision of this Tribunal in the case of Gujarat Pipavav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ujarat Pipavav Port Ltd., (supra), the impugned order is modified and the appeal is allowed. Respectfully following the same, we hold the demand of CENVAT credit as availed wrongly cannot be sustain on merits and on limitation also. We find that the show cause notice was issued to the appellant by invoking the extended period while it is on record that appellant had regularly filed the monthly returns with the authorities indicating there on the availment of CENVAT credit for particular month. In our view, the ratio of the Hon ble High Court of Allahabad in the case of Accurate Chemical Industries (supra) would directly apply and it has to be held that show cause notice dated 01.04.2010, in the case in hand seeking the demand an amount ..... X X X X Extracts X X X X X X X X Extracts X X X X
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