TMI Blog2018 (10) TMI 394X X X X Extracts X X X X X X X X Extracts X X X X ..... nt seems that irrespective, the payment was still to be made within 3 months, but I observe that since the respondent had paid the entire Service Tax on which they were liable for taking the credit i.e. on the amount as mentioned in the Bill/invoice, they were entitled to avail credit. It has already been decided by this Tribunal itself in the case of appellant itself COMMISSIONER OF CENTRAL EXCISE & ST, UDAIPUR VERSUS M/S. HINDUSTAN ZINC LTD. [2018 (7) TMI 522 - CESTAT NEW DELHI], wherein the assessee was held entitled to avail the credit of full Service Tax paid irrespective the amount payable to the service provider has been withheld till the service provider has not changed. The circular No.122/03/2010- ST dated 30th April, 2010 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3. V(26) Adj.-II/JPR-II/238/2014 dated 24.07.2014 read with corrigendum dated 04.12.2014 July 2013 to March, 2014 26,61,490/- These show cause notices were initially adjudicated vide order No. 701 dated 19 th December, 2014 confirming the demand of these show cause notices. Aggrieved thereof the assessee filed an appeal before the Commissioner (Appeals), who vide the order under challenge allowed the appeal setting aside the order of original adjudicating authority. Being aggrieved the present appeal has been filed by the Department. 3. I have heard both the parties. 4. Ld. DR has impressed upon the grounds of appeal that the credit can be allowed only when the servi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /2017 dated 25.10.2017. 6. After hearing both the parties and perusing the record, I am of the opinion that the admitted fact remains is that the appellant had paid the entire payment of Service Tax is to the contractor. In view of this admitted fact, Rule 3 of CCR comes into picture in accordance whereof the appellant can avail the cenvat credit on the amount which has already been paid by him. Simultaneously it is also admitted fact that certain percentage of the stipulated payment was withheld by the respondent on account of the performance guarantee. So the moot question to be adjudicated is as to whether the said retention prohibits the respondent from taking the Cenvat Credit in accordance of Rule 4 (7) of Cenvat Credit as is alleg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ervice tax. However, in case of subsequent refund or extra payment of service tax, the credit would also be altered accordingly. 8. The circular therefore clarifies that the credit taken would be equivalent to the amount that is paid as Service Tax. 9. The original adjudicating authority had decided and confirmed the demand of show cause notice merely for want of the evidence that the entire payment of Service Tax was made within the period of 3 months from the date of issue of invoice/ bill /challan. At this stage of the order under challenge is perused. There is a clear recitation that irrespective of retention, the amount was paid at the end of stipulated period after the completion of the project. Till date, there is nothing on ..... X X X X Extracts X X X X X X X X Extracts X X X X
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