TMI Blog2018 (6) TMI 191X X X X Extracts X X X X X X X X Extracts X X X X ..... ch CENVAT credit has been availed - In the absence of any supportive evidence for argument of revenue, the first appellate authority was correct in extending the benefit of CENVAT credit to the appellant in respect of the machinery procured by them. Benefit of N/N. 12/03 - reduction of the cost of materials for arriving at the value of such service tax liability - Held that:- On perusal of amending notification No. 12/2004, it is found that the conditions for availing the benefit of N/N. 12/03 does not include non-availment of CENVAT credit on capital goods - the restriction is for non-availment of credit of duty paid on goods and materials sold and not on the capital goods - benefit allowed. Penalty u/s 78 - Held that:- It can be see ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he statement of the proprietrix and on gathering all the details as to the value of taxable services rendered during the period 2002-03 to 06-07, show cause notice was issued for the demand of service tax liability for the period. The said show cause notice invoked the extended period and also demanded interest and penalties. Appellant assessee contested the show cause notice on merits as well as on limitation. The adjudicating authority after following due process of law confirmed the demands raised alongwith interest and imposed penalties. Aggrieved by such an order, an appeal was preferred before the first appellate authority and various legal submissions on merits were made, one of them being the appellant assessee being in photography ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the CENVAT credit of the excise duty so paid. 4. Ld. Counsel submits that the CENVAT credit availed on the machinery is evidenced by the document issued by Kodak India Limited before the first appellate authority, hence the said CENVAT credit cannot be denied to them for adjustment towards service tax liability confirmed. It is his further submission that the penalty imposed by the first appellate authority also needs reconsideration inasmuch, due to disagreement in the partnership firm, the partnership firm was disallowed and the proprietrix herein had to take the burden of settling of the dues of the appellant assessee, hence she being a lady, a sympathetic view may be taken and penalty be set aside. 5. Ld. Commissioner(AR) and th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ords in details that they have procured and used the material for rendering such services. We find that this objection of the revenue on the findings for reduction of the cost of materials is incorrect, inasmuch that the first appellate authority in para 31.4 has clearly recorded how he has worked out the exclusion of the value of the material from the gross receipts. The said findings are reproduced. 31.4 As regards the Additional Commissioner s objection espoused in the impugned O-I-O, over the purchase of the material being the basis for calculation of the value to be excluded, as claimed by JDSL, I find that the contention of the Additional Commissioner ranks high on merit and I hold that it is the value of the material/goods consum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... TOTAL Rs.12,17,803/- CESS: Rs.16,710/- As detailed above, I find that the total service tax payable by JDSL is ₹ 12,17,803/- and CESS payable is ₹ 16,710/-. 7. In our considered view, the calculation as recorded by the first appellate authority and the reason as reproduced herein above are as per the acceptable principles of the accountancy norms and has correctly arrived at the decision based on the materials consumed as reported in the balance sheet. 8. As regards the CENVAT credit availed on the machinery procured by the appellant, the first appellate authority has relied upon the duty paid document issued by Kodak In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 12/03 does not include non-availment of CENVAT credit on capital goods. The said conditions are reproduced herein below: 12/2003-Service Tax dated the 20th June, 2003 (G.S.R. 503(E), dated the 20th June, 2003) In the said notification, in the opening paragraph, the following proviso shall be inserted at the end, namely provided that the said exemption shall apply only in such cases where- (a) No credit of duty paid on such goods and materials sold, has been taken under the provisions of the CENVAT credit Rules, 2004, or (b) Where such credit has been taken by the service provider on such goods and materials, such service provider has paid the amount equal to such credit availed before the sa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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