9911796707
TMI Blog2023 (7) TMI 198X X X X Extracts X X X X X X X X Extracts X X X X ..... Commissioner by which the demand of service tax of Rs. 4,01,27,641/- in respect of the excess baggage charges recovered from the passengers by M/s. Spicejet Ltd. the respondent has been dropped and the respondent has been allowed CENVAT credit of Rs. 21,54,80,008/-. 2. The respondent was primarily engaged in business of transport of passenger by air, which was earlier exempt from service tax. Accordingly, the respondent adopted rule 6(3A) of the CENVAT Credit Rules, 2004 2004 Credit Rules for availing CENVAT credit in proportion to the dutiable services it was providing. In terms of rule 6(3A), the assessee was required to reverse the CENVAT credit every month as per the ratio of dutiable and exempted services provided in the previous fin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had not been paid by the respondent. It was also noticed that with effect from 10.09.2004 the services provided by an aircraft operator, in relation to transport of goods by aircraft, came within the ambit of service tax. 5. The respondent submitted a detailed reply dated 03.01.2013 to the audit paragraphs and explained that no excess credit had been availed by the respondent and that the excess baggage charges were not leviable to service tax. 6. However, a show cause notice dated 21.10.2014 was issued to the respondent, proposing the abovementioned demand of CENVAT credit and service tax, by invocation of the extended period of limitation contemplated under section 73(1) of the Finance Act with interest and penalty. 7. The respondent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t off against the Output tax. However, at the end of the financial year re-computation was required to be done. In view of the above, I am of the view that the assessee is correct in stating that the ration of the previous year should not be adopted for the purpose of reversing the Cenvat credit in respect of exempted services. Also as per the above Rule, reversal of Cenvat credit is required to be determined on actual basis after end of the financial year as on 30th June and adjustment is required to be made for excess/shortage in reversal of Cenvat credit for exempted services and differential amount is determined to be payable or is adjusted against the final liability. Therefore, if a view is taken to apply the previous year's ratio, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee has contended that the benefit of Notification No. 26/2010-ST dated 26.02.2010 was available to them, wherein, it has been clearly mentioned that service tax is chargeable at 10% of the gross value of the ticket or Rs. 100/- per journey, whichever is less. As service tax has been paid by the assessee @ Rs. 100/- per ticket on the total number of tickets sold, even if the consideration towards excess baggage was added in the total value of services, there would be no change in the number of tickets and the service tax amount would be no change in the number of tickets and the service tax amount would remain the same. I agree with this contention of the assessee and hold that the demand of Rs. 4.01 crores raised by the department in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of the challenge by the department to the issues on merit. 13. The audit of the statutory records of the respondent was conducted from 02.05.2012 to 08.05.2012. The same issues and demand were suggested in the audit report. The respondent had also been filing ST-3 returns. However, the show cause notice was only issued on 21.10.2014, i.e. after more than two years of the facts coming to the knowledge of the department. The department could have issued the show cause notice within the normal period of limitation. The extended period of limitation could, therefore, not have been invoked by the department. 14. Thus, for the reasons stated above, the appeal filed by the department deserves to be dismissed and is dismissed. ( Order pronounc ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
