TMI Blog2019 (4) TMI 1351X X X X Extracts X X X X X X X X Extracts X X X X ..... half yearly returns were also being accepted by the Department as the assessee-appellants were having the registration for the Service Tax and the payment was made for this period. No double jeopardy can be applied in this case. Demand of service tax not justified - appeal dismissed - decided against Revenue. - Appeal No. ST/ 02/2008 - ORDER NO. FO/75246/2019 - Dated:- 22-1-2019 - SHRI P.K. CHOUDHARY, MEMBER (JUDICIAL) AND SHRI V. PADMANABHAN, MEMBER (TECHNICAL) Shri S.S. Chattopadhyay, Supdt. (A.R.) for the Appellants Dr. Samir Chakraborty, Sr. Adv. Shri Abhijit Biswas, Adv. for the Appellant (s) ORDER PER Shri P.K. Choudhary The present appeal has been filed by the Revenue against the Order-in-Appeal No. 48/JSR/2007 dated 15.10.2007, passed by the Commissioner (Appeals), Central Excise and Service Tax, Ranchi, whereby he allowed the appeal of Tata Ryerson Limited ( TRL ) against the Order-in-Original dated April 11, 2007, passed by the Additional Commissioner of Central Excise and Service Tax, Jamshedpur and set aside the service tax demand of ₹ 26,01,069/- and interest thereon, c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The appellant also continued to accept such payment of duty without any reservation. 4. However, on 09.08.2005 a show cause notice was issued by the Commissioner of Central Excise and Service Tax, Jamshedpur wherein it was alleged that TRL had paid central excise duty on exempted final products, namely, cut/slit C.R. coils during the period from 03.03.2005 to 30.06.2005, amounting to ₹ 31.95 crores approximately, although, in view of the Board s circular dated 2nd March, 2005, no such duty was payable on and from that date and had, in the process, also availed and utilized cenvat credit irregularly of ₹ 4.23 crores approximately in March, 2005. Proposals for demanding and recovery of the said irregularly availed cenvat credit of ₹ 4.23 crores and for appropriation of the duty of ₹ 31.94 crores paid by TRL under Section 11D of the Act were made. The show cause notice resulted in an adjudication order dated 29.12.2015 passed by the Commissioner disallowing the cenvat credit of ₹ 4.23 crores and directing recovery thereof along with interest and further directing appropriation of the sum of ₹ 31.94 crores paid as duty by TRL under Sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... teel Traders Association Vs. U.O.I. [2005 (181) ELT A68 (SC)]. Accordingly, input stage credit used in relation to manufacture of such non-excisable goods has been denied. The question of denial of credit on the ground that payment of duty of excise, if any, on such non-excisable goods being entirely on the assessee s own volition, will not result in availment of input stage credit, is pending decision before the Hon ble Jharkhand High Court, Ranchi on an appeal under Section 35G of CEA preferred against the contrary order passed by the Tibunal. Therefore, CCE(A) could not conclude that the department has levied duty of central excise. This erroneous observation is also totally premature and completely nonmaintainable in view of the matter, including leviability of duty of central excise in the instant case, being sub-judice. (b) The Commissioner (Appeals) has not appreciated the fact that the show cause notice as also the Order-in Original against which the appeal was filed, pertained to the question of leviability to service tax. The Commissioner (Appeals) appears to have taken cognizance of the new facts/ grounds, completely outside the pale of show cause notice an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r which separate legal remedy appears available to assessee. In case the same is found not leviable and liable notwithstanding assessee s payment of the same, as proposed in the instant show cause notice, the assessee could seek such legal remedies against erroneous levy and unqualified payment. However, the Commissioner (Appeals) appears to have pre-empted the assessee from seeking such remedy by deciding the issue hitherto pending before the Hon ble High Court. In this perspective, it is patently wrong on the part of the Commissioner (Appeals) to have not decided the question of leviability of service tax under Business Auxiliary Services . The Commissioner (Appeals) has erroneously and by default allowed the assessee to go out of the mischief of service tax by way of referring to simultaneous levy under the Central Excise Act and not at all on the merit of the case. 7. On behalf of the respondent, TRL, it is submitted that in the undisputed facts and circumstances of the case, as apparent from the records, the Revenue having collected, without any demur or reservation, central excise duty on the subject H.R. coils during the material period and having not refunded ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Jharkhand High Court by the aforesaid judgment. (e) There has been no refund to TRL of the said sum of ₹ 31.94 crores/Rs.27.63 crores approx. of excise duty paid to the Department on the ground that since there was no manufacture involved, no duty was payable. There has also been no refund claim by TRL. 10. We find that in similar circumstances pertaining to demand of excise duty vis- -vis service tax, in the case of K. R. Packaging Vs. Commissioner of C.Ex. Service Tax (supra) this Tribunal has held as under:- 7. Hence, in the light of above discussion, we are of the considered view that the activity of the assessee-appellants is of manufacture and falls within the category of Section 2(f)(iii) of he Central Excise Act, 1944. In the instant case, the assessee-appellants had already paid the Service Tax under the bona fide belief and the half yearly returns were also being accepted by the Department as the assesseeappellants were having the registration for the Service Tax and the payment was made for this period. No double jeopardy can be applied in this case. Hence, assesseeappellants cannot be punished twice as they have alrea ..... X X X X Extracts X X X X X X X X Extracts X X X X
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