9911796707
TMI Blog2019 (6) TMI 795X X X X Extracts X X X X X X X X Extracts X X X X ..... 2. Facts of the case, in nutshell, is that appellant was engaged in the business of provision of offshore logistic service and support services for exploration and production of oil and gas and it entered into charter hire contract with ONGC for vessels. A new taxable entry called 'mining service' was introduced w.e.f. 1-6-2007 and there was confusion in the trade if such charter 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'bl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... redit would not lapse, which has been clearly explained in circular no. 137/72/2008 - CS4 dated 21-11-2008 and therefore Department should not deny realisation of such accumulated CENVAT credit by the taxpayer after 1-4-2008, when Rule 6 (3)(c) was deleted. He further contended that interpretation of statutory provision was involved and as Appellant had 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 su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h on the other day and perused the case record. In the case law cited by both parties the factual aspects regarding legality of utilization of CENVAT credit in excess of 20% which was the prescribed limit for such utilisation in a particular year but Appellant's case is quite dissimilar to those facts. In the instance case Appellants 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 23-3-2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unt of Rs. 6718054/-, paid by cash through GAR-7 challan, in respect of M/s. ONGC Ltd., is due for refund. Hence I find that the assesse is eligible for refund of Rs. 718054/-. Further, in their Balance sheet as on 31-03-08, the amount of Rs. 77,20,612/- is shown as 'due' from the government. Hence I find 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Zonal Bench in Idea Cellular Ltd. cited supra is that there is no bar on availment of unutilized CENVAT credit as there is no lapsing provision for balance 80% for which recovery of credit cannot be done, though interest can be imposed at the best for 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 pre ..... X X X X Extracts X X X X X X X X Extracts X X X X
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