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TMI Blog2019 (2) TMI 1299X X X X Extracts X X X X X X X X Extracts X X X X ..... the territory, automobiles using technical information disclosed to appellant; and non-exclusive rights and privileges to apply, use or affix trademarks to or on automobiles, local components and local spare parts in connection with manufacture and assembly of the same; (i) "consideration" for right to manufacture using technical information involves an amount equivalent to a. 2.7% on the export sales of the automobiles, local components and local spares parts manufactured pursuant to the agreement; and b. 2.7% on the domestic sales of the automobiles and local spares parts manufactured pursuant to the agreement, and the "Consideration" for Trade mark license involves an amount equivalent to: a. 0.3% on the export sales of the Automobiles and as the case may be local components and local spare parts manufactured pursuant to the agreement; and b. 0.3% on the domestic sales of the automobiles and as the case may be local spare parts manufactured pursuant to the agreement. From the investigations, it appeared appellants had made provisions in their books of account towards royalty payment to NML for the period from July 2010 and March 2011, but had not discharged service tax l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (Tri.-Del.) 4) Rochem Separation Systems (India) Pvt. Ltd. Vs CST Mumbai 2015 (1) TMI 1052- CESTAT MUMBAI 5) Asea Brown Boveri Ltd. Vs CCE & ST, LTU - 2016 (7) TMI 559 - CESTAT BANGALORE 6) Saint-Gobain Gyproc India Ltd. Vs CCE Rohtak - 2014 (4) TMI 955- CESTAT NEW DELHI (iv) The larger period of limitation ought not to have been invoked as situation is revenue-neutral. Further, the findings in the Order-in-Original are baseless as credit was availed only tax paid on goods which suffered duty. (v) Without prejudice, trading was not exempted activity during the impugned period. (vi) There can be no demand of interest and penalty when the situation is revenue-neutral. (vii) Ld. Consultant further submits that notwithstanding their above contentions as they have already discharged demand in entirety, they do not intend to contest the same. However, appellant has already conveyed in the previous date of hearing on 10.01.2018 that their appeal is now restricted only to interest and penalty. (viii) In respect of Appeal ST/42153/2014, he submitted that invocation of Rule 9 (1) (bb) of Cenvat Credit Rules, 2004 is not sustainable in their case since no suppression can be involved ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... demand in entirety interest thereof will also be required to be paid by them. (d) Penalty will also follow as a natural consequence. (e) Ld.A.R reiterates the conclusions of the original authority in paras 9.1 to 9.3 and 10 of the impugned order dt. 28.02.2013 in respect of revenue-neutral and penalty. 6.2 In respect of Appeal E/42153/2014, it is submitted by Ld. A.R submitted that his very argument would also be applicable to this matter. 6.3 When the appellants have paid up the amount demanded in entirety, it follows natural consequence that the very cenvat credit could not have been availed by them and would require to be reversed in terms of availed by them as correctly decided by the adjudicating authority. 7. Heard both sides and have gone through the facts of the case. 8.1. In Appeal ST/42266/2013 the dispute concerns exigibility of service tax with respect to the provisions made in the books of account towards payment of royalty for the period from July 2010 to March 2011 amounting to Rs. 60,31,49,154/-. During the course of hearing, Ld. Consultant has submitted that the tax liability demanded in the impugned order dt. 28.02.2013 of Rs. 6,21,24,362/- is not contested ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, the appellants are not contesting the demand made in this aspect. As discussed earlier, they are only flagging the issue of excess tax liability of Rs. 42,02,460/- which has been paid by them in excess. It is also to be kept in mind that while the tax demands do relate to entries made in the provisional entries made in the books of account towards royalty and technical knowhow etc., however, no actual payment was remitted abroad on monthly basis and was only done at the end of the year. The change in law effected w.e.f. 10.5.2008, however required that tax liability should be discharged even on such books of account adjustment made with regard to associated enterprises. We also find that on being pointed out, have immediately appellants paid up the entire tax liability. We find that these are all mitigating factors. The very fact that appellants had been meticulously making provision and only providing in the books of accounts also indicates that they had no intention to hide facts that they are required to pay royalties hence it would not be proper to saddle them with the charge of suppression of facts with intention to evade payment of duty. In the circumstances, we are of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Central Excise Rules, 2002 prescribe the following : Goods to be "Rule 11. removed on invoice. - The provisions of this rule (7) shall apply mutatis mutandis to goods supplied by a first stage dealer or a second stage dealer : Provided that in case of the first stage dealer receiving imported goods under an invoice bearing an indication that the credit of additional duty of customs levied on the said goods under sub-section (5) of Section 3 of the Customs Tariff Act, 1975 (51 of 1975) shall not be admissible, the said dealer shall on the resale of the said imported goods, indicate on the invoice issued by him that no credit of the additional duty levied under sub-section (5) of Section 3 of the Customs Tariff Act, 1975 shall be admissible; Provided further that in case of the second stage dealer receiving imported goods under an invoice bearing an indication that the credit of additional duty of customs levied on the said goods under sub-section (5) of Section 3 of the Customs Tariff Act, 1975 (51 of 1975) shall not be admissible, the said dealer shall on the resale of such imported goods, indicate on the invoice issued by him that no credit of the additional duty levied u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Cenvat credit will be admissible on duty paying TR-6 challan when it is not disputed that goods were used in the manufacture of excisable goods to be cleared on payment of duty. Further, in Para 40 of the judgment of Karnataka High Court in the case of Karnataka Soaps & Detergent Ltd. v. CCE, Mysore (supra) it is held that documents specified in Rule 7 (present Rule 9 of Cenvat Credit Rules, 2004) of the earlier Cenvat Credit Rules is only illustrative in nature and cannot bar taking of Cenvat credit under Rule 3 of Cenvat Credit Rules. When additional duty is paid under reassessment or on being pointed out by the Revenue then the credit of such duty paid will be admissible as Cenvat credit to the appellant under Rule 9(1)(c) of the Cenvat Credit Rules, 2004. In view of the above settled position of law, the credit was rightly availed by the appellant and accordingly the appeal filed by the appellant is required to be allowed. Once on merits the issue is decided in favour of the appellant, there is no question of imposing penalty and confiscation of capital goods as adjudicated by the lower authority." 11. In the light of the discussions herein above, we hold that no suppression c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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