TMI Blog2019 (6) TMI 795X X X X Extracts X X X X X X X X Extracts X X X X ..... can very well be noticed that documents of the Appellant including copies of ST-3 returns for the relevant period April to September 2007 along with ST-2, Invoice reflecting amount of Service Tax charged, Service Tax paid through CENVAT credit were produced before him and he analysed/ scrutinised the same and allowed the refund claim of the Appellant partly as well as refused a part of it on the basis of his assessment and analyse of claim of the refund. Extended period of limitation - HELD THAT:- Putting the Appellant under notice that it had wilfully suppressed the fact of excess utilisation of CENVAT credit way back in 2007 would bring an inference that Appellant had knowledge of such order to go in its favour in 2010, appears illogic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rter hiring vessels would fall under the taxable entry of mining service for which Appellant paid Service Tax under protest and duly shown the same in ST-3 returns as wel as filed refund claim on 24-3-2008 claiming refund of Service Tax paid between August 2007 to February 2008. In the case of Indian Ship-owners Association reported in 2009 (14) STR 289 9Bom.), Hon ble Bombay High Court vide order dated 23-3-2009, had held that the activities performed by the appellant were not covered under the category of mining service. Accordingly refund of ₹ 67,18,054/- was allowed and refund paid through CENVAT credit amounting to ₹ 10,02,558/- was rejected. CA-2000-Audit was conducted and it was observed in the audit report that in view ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d duly filed ST-3 returns during the disputed period showing utilisation of CENVAT credit in excess of 20%, extended period is not invocable and appellant is not liable to penalty in view of decision of Indian Hotels Co. Ltd. v. Commissioner of Service Tax, Bangalore 2014 (36) STR 1268 (Tri. Bang.) for which he prayed to set aside the order passed by the Commissioner. In response to such submissions, Learned AR for the Respondent Department Shri M.K. Sarangi, Addl. Commissioner submitted that refund of Service Tax paid on the service rendered during the relevant period became exempted for which separate account was required to be maintained by the Appellant in terms of Rule 6(3)C of the CENVAT credit Rule 2004 for taxable and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lants had utilised the CENVAT credit on the tax paid on the services extended by it which was subsequently held by the Hon ble High Court not included in the category of the definition of services as prevailing them and the activities carried out by the Appellant was not tobe equated with mining service which was included in the taxable entry w.e.f. 1-6-2007. Hon ble Bombay High Court s order was pronounced on 23-3-2009, basing on which Appellant s refund application was processed by the jurisdictional officer namely Dy. Commissioner, ST-I, Divn.-III, Mumbai and in his detailed order dt. 4-5-2011, refund claim of the Appellant was allowed. Going by the Order-in-Original of refund application number ST/58/11 it can very well be noticed that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that there is no unjust enrichment. The refund claim pertains to the period September 07 to October 07 has been filed on 24-03-2008/28-05-2008. Hence the refund claim is also filed within the time limit of 1 year as stipulated under section 11B of Central Excise Act 1944 as made applicable to service tax matter vide Section 83 of the Finance Act1994. I also hold that till 16-5-2008 from when the assesse was rightly covered under the head Supply of Tangible Goods , the assesse was never required to pay service tax hene the assesse was neither eligible for any CENVAT credit nor required to pay any service tax. Accordingly, I hold that the assesse is eligible to refund of ₹ 6718054/- equivalent to amou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such excess utilisation. Further, circular no. 137/72/2008 made it clear that there was no lapsing provision incorporated and the existing Rule 6(3) of CENVAT credit rule had not explicitly barred the utilisation of accumulated credit subsequent to repeal of Rule 6(3)(c) CCR 2004 and the contention of Learned AR that no such circular was in existence cannot sustain in view of the fact that Indian evidence Act under section 78 puts such notification in the category of public documents to be presumed as genuine as per section 79 of the Evidence Act. Therefore, in the instant case, when no suppression etc. is made out, extended period is not invocable and therefore interest on duty cann t also be enforced. Hence the order. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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