TMI Blog2009 (5) TMI 53X X X X Extracts X X X X X X X X Extracts X X X X ..... d. - ST/141 OF 2008 AND E/714 OF 2008 - A/174-175/WZB (MUM.) OF 2009/SMB/C-IV - Dated:- 4-5-2009 - A.K. SRIVASTAVA, TECHNICAL MEMBER Anupam Dighe for the Appellant and P.K. Agarwal for the Respondent. ORDER 1. M/s. Ahmednagar Merchants Co-Op. Bank Ltd., Ahmednagar ('the appellants' herein) are a registered service tax provider under the category of "Banking Other Financial Service". They are paying service tax on commission received from customers and also availing the Cenvat credit facility of service tax paid on Telephone Bill, Courier Charges and Computer Maintenance bills and commission paid to other Banks as provided under Cenvat Credit Rules, 2004. They are availing 20 per cent of the Cenvat credit against abovesaid services. However they are availing 100 per cent of the Cenvat credits against commission paid on other Banks. They have taken Cenvat credit on the basis of work-sheet enclosed with ST-3 Return without any documentary proof i.e., documents prescribed under rule 9(1)(f) and (g) of Cenvat Credit Rules, 2004 such as invoice bill or challan etc., and utilized the same for payment of Service Tax amounting to Rs.1,61,163 (Rs.1,58,004 /ST + Rs. 3,1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Commissioner (Appeals). 4. Heard both sides on both the appeals and perused the records. First, I will deal with the appeal No. ST/141/08 filed by the appellants. 5. The appellants have contended that there are two issues involved in the present case, one is that whether the bank can avail Service Tax credit on the basis of documents issued by other banks where no Service Tax is separately shown and the second issue is whether the Order-in-Original confirming a demand of Service Tax under section 73 of Chapter V of the Finance Act, 1994 and penalty under section 76 of the said Act is just and proper particularly when the notice to show cause alleges wrong availment of Credit of Service Tax under the Cenvat Credit Rules, 2004 and recovery thereof for the wrong availment. The appellants, while making submissions on the first issue, stated that it is evident from the documents on which they have availed the Credit that the other banks has charged the commission and have also deducted the same along with Service Tax while remitting. They further submitted that the only lacuna is that the other banks have not shown the Service Tax and Service Tax Registration Number separately. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Service provider. Vide Notification No. 30/2004.ST, dated 22-9-2004, any document irrespective of the fact whether or not serially numbered and whether or not containing address of the person receiving taxable services but containing other information in such document as required in sub-rule (1) of rule 4A of the Service Tax Rules, 1994 is a valid document for taking credit. However, it is seen that even the proviso inserted to rule 4A of the Service Tax Rules, 1994 vide Notification No. 30/2004-ST, dated 22-9-2004 is of no help to the appellants because the crucial information and the material particulars required for availing credit of service tax are not available in the documents, as has been rightly pointed out by the learned SDR. Hence, these documents are not valid documents to avail the credit because of the non-fulfilment of the requirements of the provisions of rule 4A of the Service Tax Rules, 1994 read with rule 9 of the Cenvat Credit Rules, 2004. The appellants' contention that they have substantially complied with the provisions of the Cenvat Credit Rules is not correct and is not borne out from the records. Hence, the Cenvat credit has been rightly disallowed to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ax, provided that the total amount of the penalty payable in terms of this section shall not exceed the service tax payable. Therefore, according to revenue, the statute does not provide the discretion of quantification of penalty except from imposition of penalty equal to the service tax amount determined under section 68 of the Finance Act, 1994, but dues not provide the discretion to reduce the quantum of penalty less than the service tax amount so determined under section 68 of the Finance Act, 1994. Therefore, the reduction of penalty to Rs, 25,000 instead of Rs.1,61,163 by the Commissioner (Appeals) does not find support from the law in existence. The learned SDR relied upon the judgment of the Hon'ble Supreme Court in the case of Union of India v. Dharmendra Textile Processors 2008 (231) ELT 3/166 Taxman 65 in which it was held that no discretion is available on the quantum of penalty under section 11AC of the Central Excise Act, 1944 and lesser penalty is not imposable. He also relied upon the Tribunal orders in the case of Bhilai Engineering Co. Ltd. v. CCE, Raipur in [2009] 19 STT 325 (New Delhi-CESTAT) and Chaitanya Advertising v. CCE C [2009] 8 STT 235 (Ahd. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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