TMI Blog2018 (12) TMI 366X X X X Extracts X X X X X X X X Extracts X X X X ..... it utilised for payment of service tax for the period July-September 2012-13 - the credit has been availed on the purchase of two machines vide two invoices dated 06.06.2011 and 24.12.2011 which were to be used to execute the work order of mining between the Corporation and the appellant - Held that:- The credit is rather permissible to be taken on both these machines by the appellants in another unit irrespective of the invoices showing the different address of the appellant - Even the CBEC Circular as relied upon by the appellant has clarified that where the goods are ordered by registered / head office of the assessee and the invoice does not bear the consignee address, the credit ought not to be denied - credit allowed. Lapse of proc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e appellate authority are sufficient to prove that the appellant has been paying the excess duty for some of the financial years of the period in dispute and had been adjusting the same qua short payment is sufficient to hold that there is no intent to evade the duty. In absence thereof no question arises for imposition of penalty - penalty set aside. Appeal allowed - decided in favor of appellant. - Excise Appeal No. E/52523/2018 [SM] - FINAL ORDER NO. 53351/2018 - Dated:- 4-12-2018 - MRS. RACHNA GUPTA, MEMBER (JUDICIAL) Present for the Appellant: Mr. Z.U. Alvi, Advocate Present for the Respondent: Mr. K. Poddar, DR ORDER PER: RACHNA GUPTA The Appeal in hand has been filed being aggrieved of Order of Com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated 24.01.2017 was served upon the appellant proposing the aforesaid demand and a late fee of ₹ 7,200/-. In addition, the interest at the appropriate rate and the penalty of the same amount was also proposed to be levied. The said Show Cause Notice was initially adjudicated vide Order No. 22-34 dated 12.01.2018 vide which the demand of alleged short amount of service tax of ₹ 11,43,240/- was dropped. However, all the remaining demands were confirmed. Being aggrieved, the Appeal was filed before Commissioner(Appeals) who vide the Order under challenge has upheld the initial Order. Still being aggrieved, the Appeal is before this Tribunal. 2. We have heard Mr. Z.U. Alvi, Ld. Advocate for the appellant and Mr. K. Poddar, Ld. DR ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he factory. The Order to the extent of denial of the availment of cenvat credit and imposition of late fee alongwith the penalties is therefore prayed to be set aside, Appeal is prayed to be allowed. 4. Ld. DR has justified the Orders of adjudicating authorities below. It is impressed upon that the proposed demand has partially been dropped by the authorities below. The demand confirmed has sufficient reasoning in the Order under challenge. There is the apparent non compliance of Rules 9, 7 and 12 of Cenvat Credit Rules, 2002 on part of the appellant. There is no infirmity, as alleged, in the Order under challenge. Appeal is prayed to be dismissed. 5. After hearing both the parties and perusing the entire record, we are of the opinion ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oversy remains is as to whether the invoices bearing different address of the service provider than the one for which the credit has been availed is the violation of Rule 9 of CCR, 2004. We are of the opinion that the service provider for both the sites is same and has been commonly registered for both the sites. In the given circumstances, the credit is rather permissible to be taken on both these machines by the appellants in another unit irrespective of the invoices showing the different address of the appellant. We draw our support from the decision of this Tribunal in the case Tooltronic Vs. C.C.E. 2006(205) E.L.T. 946. Even the CBEC Circular as relied upon by the appellant has clarified that where the goods are ordered by registered ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... premises has wrongly been considered as a ground to deny the availment of cenvat credit on the capital goods used by the appellants for providing the output service. Similarly, the findings about absence of all the particulars as prescribed under Central Excise Rules, 2002 / Rule 9(2) of CCR, 2004 are not sustainable. These findings are therefore set aside. 8. Now coming to the allegation of payment of late fee, it is observed that details of amount received and service tax paid for the last 5 years of period in dispute were provided by the appellant to the Department. Based thereupon, it is the finding of the authorities below that the service tax was paid in excess by the appellant during the period in question. Confirming the demand o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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