TMI Blog2019 (12) TMI 240X X X X Extracts X X X X X X X X Extracts X X X X ..... e are not per se covered by the circular, is incorrect. A clear reference to amounts withheld towards various counts including security, in the opinion of the court, comprehends the withholding of amounts towards performance guarantee. The question of law is answered against the Revenue - Appeal dismissed. - D.B. Misc. Application No. 82/2019, D.B. Central/excise Appeal No. 126/2017 - - - Dated:- 3-12-2019 - HON'BLE THE CHIEF JUSTICE MR. INDRAJIT MAHANTY And HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI For the Petitioner : Mr.Sharad Kothari for applicant For the Respondent : Mr.Kuldeep Vaishnav for UOI ORDER D.B. Misc. Application No. 82/2019:- For the reasons stated i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... redit of the service tax paid on input services. Alleging that the full payment of value of the input services was not in fact made to the Service Providers during 2006-07 to 2009-10 a show cause notice was issued. The Adjudicating Authority dropped the demand in the order in original on 01.06.2017. The Excise Department appealed to the Customs Excise and Service Tax Appellate Tribunal (CESTAT). Relying upon a previous decision in Commissioner of Central Excise, Jaipur-II Vs. Hindustan Zinc Ltd., 2014 (34) STR 440 (Tri. Del), the CESTAT allowed the appeal. While doing so, it was mainly influenced by a circular dated 30.04.2010. 3. This Court has considered the submissions of the parties. 4. The main argument of the Reven ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4. Thus the following issues relating to availment of CENVAT credit need clarification. - Whether CENVAT credit can be claimed (a) when payments are made through debit/credit notes and debit/credit entries in books of accounts or by any other mode as mentioned in section 67 Explanation (c) for transactions between associate enterprises; or (b) where a service receiver does not pay the full invoice value and the service tax indicated thereon due to some reasons. 5. Matter has been examined and clarification in respect of each of the above mentioned issues is as under:- (a) When the substantive law i.e. section 67 of the Finance Act, 1994 treats such book adjustments etc., as de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uld in fact stand amended to that extent. The credit taken would be equivalent to the amount that is paid as service tax. However, in case of subsequent refund or extra payment of service tax, the credit would also be altered accordingly. 6. It is clear that CESTAT in its finding (in para 4) noticed the clarification issued by the Board and held that the withholding of performance guarantee in the present case is covered in para 5 (b). 7. This Court is of the opinion that the argument of the Revenue that performance guarantee amounts withheld by the asseessee are not per se covered by the circular, is incorrect. A clear reference to amounts withheld towards various counts including security, in the opinion of the court ..... X X X X Extracts X X X X X X X X Extracts X X X X
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