TMI Blog2021 (6) TMI 745X X X X Extracts X X X X X X X X Extracts X X X X ..... ervice received from AGSS made on accrual of invoices. Extended period of limitation - HELD THAT:- Both the authorities have not considered the ratio of the decision in the case of JET AIRWAYS (I) LTD. VERSUS COMMISSIONER OF SERVICE TAX, MUMBAI- (VICE-VERSA) [ 2016 (12) TMI 934 - CESTAT MUMBAI] decided by the Tribunal which was upheld by the Hon ble Apex Court in JET AIRWAYS (INDIA) LTD. VERSUS COMMISSIONER [ 2018 (1) TMI 210 - SC ORDER] which is clearly applicable in the facts and circumstances of the present case. It is also found that the Commissioner(Appeals) in the impugned order has wrongly relied upon the ratio laid down by the Apex Court in the case of BALWANT SINGH VERSUS JAGDISH SINGH [ 2010 (7) TMI 556 - SUPREME COURT] wherein the facts of those cases are entirely different from the facts of the present case - The decision of Balwant Singh deals with the condonation of delay while the present case deals with the concept of revenue neutrality with regard to service tax remitted under reverse charge mechanism. The extended period of limitation has wrongly been invoked by the Revenue in the present case because the appellant has not concealed any material fact an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ittance of tax on reverse charge mechanism has been made post-service tax regime and hence cenvat credit for the same cannot be availed, based on the said provisions, the appellant requested that his reply may also be treated as application for refund of such service tax paid as per Section 142(6) of the CGST Act, 2017. After following the due process, the Assistant Commissioner vide his Order-in-Original dt. 30.01.2019 restricted the demand only to the extent of tax already paid by the appellant. The original authority dropped the demand for interest and penalty by following the principle of revenue neutrality. The original authority rejected the plea of the appellant for refund of service tax paid after 1st July 2017 by stating that the assessee was free to take cenvat credit subject to the procedure and fulfillment of conditions of CENVAT Credit Rules, 2004. Aggrieved by the said order, appellant filed appeal before the Commissioner(Appeals) who vide the impugned order dt. 17/10/2019 rejected the appeal. 3. Heard both sides and perused the records. 4. Learned counsel for the appellant submitted that the impugned order is not sustainable since the same has been passed witho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... basis of revenue neutral rationale laid down by various decisions. He further submitted that the legal reasoning should have been applied as a whole amount including service tax instead of selective application of the same only for interest and penalty. Learned counsel also submitted that the demand has been confirmed by invoking the extended period of limitation and in the facts and circumstances, the extended period of limitation cannot be invoked because the appellant has not suppressed any material facts with intention to evade payment of service tax. He further submitted that the Department has not established any of the ingredients which are required in order to invoke the extended period of limitation. In support of his submission, he relied upon the following decisions:- i. Pushpam Pharmaceuticals Vs. CCE, Bombay [1995(78) ELT 401 (SC)] ii. Pahwa Chemicals Private Ltd. Vs. CCE, Delhi [2005(189) ELT 257 (SC)] iii. CCE Vs. Chempar Drugs Liniments [1989(40) ELT 276 (SC)] iv. India Colour Lab Vs. CCE [2006(3) STR 180 (Tri. Del.)] 4.2. The learned counsel has also filed the additional written submissions and has referred to Section 142(3), Section 142(6) and Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under reverse charge mechanism. Here it is pertinent to reproduce the relevant findings in the case of Jet Airways (India) Ltd. in paras 10.1, 10.2, 10.3, 10.4, 10.07, 10.8 and 10.9. 10.1 We find that the arguments put forth by learned Sr. Counsel on the Revenue neutrality may merit acceptance for more than one reason. 10.2 Firstly, it is undisputed that the service tax liability on the payments made by appellant to CRS Companies is on reverse charge mechanism as if the appellant is a service provider. The said service tax liability has arisen on the tickets issued by the CRS Companies to various customers of appellant. It is also undisputed that the appellant herein has discharged the service tax liability as an output service provider in respect of the services rendered by the appellant under the category of, transport of passenger by air and other services . If that be so, appellant is eligible to avail the Cenvat credit on all the services on which service tax is paid and utilized for rendering such output service. 10.3 Secondly, it is nobody s case that the service tax liability on online information and database access or retrieval service is pai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a) Ltd. was upheld by the Hon ble Apex Court as cited supra. Therefore, this decision is applicable in the present case. Further I find that the extended period of limitation has wrongly been invoked by the Revenue in the present case because the appellant has not concealed any material fact and has been filing the return regularly and paying the service tax under reverse charge mechanism and has been cooperating with the Department by providing various information and documents. Therefore by relying upon the ratio of the various decisions cited by the appellant, I am of the view that invocation of extended period of limitation is not sustainable in law. 6.2. Further I find that the issue of revenue neutrality has also been clarified by the CBEC vide Circular No.354/148/2009-TRU dt. 16/07/2009 wherein it has been clarified that the service tax paid by a service recipient on reverse charge basis would also qualify as input service for availment of cenvat credit. 7. In view of my above discussion and by following the ratio of the decision in the case of Jet Airways (India) Ltd. cited supra, I am of the considered view that the case of the appellant is squarely covered by doctri ..... X X X X Extracts X X X X X X X X Extracts X X X X
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