TMI Blog2021 (6) TMI 948X X X X Extracts X X X X X X X X Extracts X X X X ..... ightly availed by the appellant and accordingly the appeal filed by the appellant is required to be allowed. Appeal allowed - decided in favor of appellant. - EXCISE Appeal No. 12643 of 2018-SM - FINAL ORDER NO. A/12268 / 2021 - Dated:- 24-6-2021 - MR. RAJU, MEMBER (TECHNICAL) Present For the Appellant : Shri S.J. Vyas, Advocate Present For the Respondent : Shri RakeshBhashkar, Superintendent (AR) ORDER The issue involved in the present case Service Tax credit can be availed when the Service Tax has been paid by virtue of a supplementary challan issued in a case involving suppression, mis-declaration, etc., however, on a reverse charge basis by the service recipient. The issue is squarely covered by the decision o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (e) of the CCR 2004. We find this contention to be correct in law. There is no doubt that the demand of ₹ 6,21,24,362/- was made under the premise that the same was required to be paid under reverse charge basis. This being so, such payment will only within the ambit of Rule 9(e) ibid and not Rule 9 (bb) of the CCR 2004. We also find that the decision relied upon in Essar Oil Ltd. Vs CCE Rajkot - 2014 (303) ELT 255 (Tri.-Ahmd.) is applicable on all fours to the issue at hand. The relevant portion of the said decision is reproduced as under : 5.3 From the above prescription, it is evident that for the preparation of an invoice, there has to be a buyer to whom goods are sold. Further, Rule 11(7) of the Central Excise Rules, 2002 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and Rule 9(a)(ii) of the Cenvat Credit Rules, 2004 will convey that in case of sale of imported goods by a first stage dealer or second stage dealer also the credit is admissible on the basis of such a sale invoice. A similar situation will exist for supplementary invoice issued by a first stage dealer/second stage dealer under Rule 9(1)(b) of Cenvat Credit Rules, 2004. The word Challan and any other similar document evidencing payment of additional CVD, mentioned in Explanation to Rule 9(1)(B), will thus mean these situations where duty is paid under a challan by an importer/dealer of imported goods who has sold the cenvatable goods. This provision relating to issue of supplementary invoice will not be applicable to the goods import ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Further, in Para 40 of the judgment of Karnataka High Court in the case of Karnataka Soaps Detergent Ltd. v. CCE, Mysore (supra) it is held that documents specified in Rule 7 (present Rule 9 of Cenvat Credit Rules, 2004) of the earlier Cenvat Credit Rules is only illustrative in nature and cannot bar taking of Cenvat credit under Rule 3 of Cenvat Credit Rules. When additional duty is paid under reassessment or on being pointed out by the Revenue then the credit of such duty paid will be admissible as Cenvat credit to the appellant under Rule 9(1)(c) of the Cenvat Credit Rules, 2004. In view of the above settled position of law, the credit was rightly availed by the appellant and accordingly the appeal filed by the appellant is required to ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
