9911796707
Advanced Search 
TMI Blog2018 (12) TMI 1098X X X X Extracts X X X X X X X X Extracts X X X X ..... ve taken the Cenvat Credit on the said Service Tax paid. The Revenue has issued a SCN dated 22 February 2017 wherein it was proposed to deny Cenvat Credit on the ground that the Service Tax was paid due to suppression of fact, willful mis-statement etc. and according to Rule 9(1)(bb) of Cenvat Credit Rules, 2004 the Cenvat Credit is not admissible, when the non-payment of Service Tax was paid by reason of fraud or collusion or willful mis-statement or suppression of fact. The adjudicating authority confirmed the demand. Being aggrieved by the Order In Original appellant filed appeal before Commissioner (Appeals) rejected the appeal relying on the Commissioner (Appeals) order in the case of Shiv Lifters bearing Order In Appeal No. Vad-Excus- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rity denied the credit only by invoking Rule 9(1)(bb) of Cenvat Credit Rule, 2004, which reads as under: "Rule 99(1) (bb) a supplementary invoice, bill or challan issued by a provider of output service, in terms of the provisions of Service Tax Rules, 1994 except where the additional amount of tax because recoverable from the provider of service on account of non-levy or non-payment or short-levy or short-payment by reason of fraud or collusion or wilful misstatement or suppression of facts or contravention of any of the provisions of the Finance Act or of the rules made thereunder with the intent to evade payment of service tax." 5. From the plain reading of the above Rule 9(1)(bb) it is observed that the credit can be denied only if the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the appellant. Moreover by availing the provision of Section 73 (4A), no adjudication process is required to be carried out. When there is no adjudication, whether there is fraud or collusion or willful mis statement or suppression of fact the same is not established, therefore, after making the payment under Section 73 (4A), the case stand concluded, there cannot be charge of fraud or collusion or willful mis statement or suppression of fact etc. Accordingly, credit on that amount cannot be denied. The same issue has been stated of this Tribunal in the case of Shi Lifters (Supra) wherein the Tribunal held that when the payment under Section 73 (4A) of Finance Act, 1994 was made the provision of Rule 9(1)(bb) of Cenvat Credit Rule, 2004 ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
