TMI Blog2021 (7) TMI 635X X X X Extracts X X X X X X X X Extracts X X X X ..... ed Cenvat credit of the same. The issue above is no longer res integra in view of the judgment of the Hon ble Madras High court in the case of THE COMMISSIONER OF CENTRAL EXCISE, AND SERVICE TAX LARGE TAXPAYER UNIT VERSUS M/S TAMILNADU PETROPRODUCTS LTD, THE CUSTOMS EXCISE AND SERVICE TAX APPELLATE TRIBUNAL [ 2015 (11) TMI 840 - MADRAS HIGH COURT] where it was held that If, upon a misconception of the legal position, the assessee had paid the tax that he was not liable to pay and such assessee also happens to be an assessee entitled to certain credits such as CENVAT Credit, the availing of the said benefit cannot be termed as illegal. The Appellant assessee cannot be asked to reverse the Cenvat credit availed on tax paid under Rev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ne of ₹ 14,82,558/- and to impose penalty. The said SCN culminated into Order-in-Original dated 03.10.2019 wherein the Adjudicating authority confirmed the total demand as proposed along with applicable interest and imposed penalty. On Appeal, the learned Commissioner (Appeals) upheld the Adjudication Order. Hence, the present appeal before the Tribunal. 4. Shri Ankit Kanodia, learned Advocate appeared on behalf of the appellant and Shri S.S. Chattopadhyay, learned Authorized Representative appeared on behalf of the Respondent department. 5. The learned Advocate appearing for the appellant submitted that the dispute relates to availment of Cenvat credit on Service Tax paid by the Appellant under import of service of transportati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... us TAMILNADU PETROPRODUCTS LTD. [2015 (40) S.T.R. 878 (Mad.)], wherein, in a similar situation of payment of tax under Reverse Charge Mechanism and availment of Cenvat Credit of the said payment, the Hon ble High Court had dismissed the departmental appeal for recovery of Cenvat Credit. He further contended that there is no scope of invoking extended period of limitation in the given case. He relied on many judgments on account of non imposition of penalty as held in various decisions. 7. The learned Authorized Representative for the Revenue, on the other hand, justified the order of the first appellate authority. 8. Heard both sides through video conferencing and perused the appeal records. 9. The short issue that arises for consi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tely, the first respondent/assessee paid service tax, even at a time when there was no liability on them. Since they made payment of tax under the impression that they were due to pay, they claimed Cenvat credit to that extent. It is not the case of the Department that the first respondent claimed Cenvat credit in respect of an amount that they had not paid or in excess of the amount that they have paid. The only grievance of the Department is that if the assessee had paid tax which they were due to pay or if they had paid duty in excess of what they are liable to pay, the only course open to them is to claim refund and not to make use of Cenvat credit. But, we do not think so. If, upon a misconception of the legal position, the assessee ha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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