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TMI Blog2009 (5) TMI 53X X X X Extracts X X X X X X X X Extracts X X X X ..... rs 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. 3,159 Edu. Cess) for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 15 of the Cenvat Credit Rules, 2004. He also ordered to recover the interest under the provisions of section 75 of Chapter V of the Finance Act, 1994 read with rule 14 of the Cenvat Credit Rules, 2004 and section 11AB of the Central Excise Act, 1944. Being aggrieved, the appellants have filed an appeal before the Commissioner (Appeals), Central Excise and Customs, Aurangabad. The Commissioner (Appeals) decided the case, vide OIA dated 25-3-2008, wherein he upheld the demand of service tax and interest. However, he brought down the penalty to Rs. 25,000 only, which was imposed under section 76 of Chapter V of the Finance Act, 1994 equal to Cenvat credit of Rs.1,61,163. 3. ST/141/08 is an appeal filed by the appellants against the Order-in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g the Service Tax paid on each slip was not possible because of the heavy volumes of transactions. They, therefore, contended that there was substantial compliance of the procedure and the adjudicating authority should have allowed the credit in terms of power vested in him vide rule 9(2) of the Cenvat Credit Rules, 2004. 6. The learned SDR took me through the Order-in-Original passed by the Assistant Commissioner and stated that the appellants are not in possession of invoices, bills or challans. He further submitted that the daily summary cannot be treated as a valid document inasmuch as from the sample copies produced during the course of hearing before the Assistant Commissioner, it is observed that the said summary contains only the f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... T, 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 ava ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the provisions of rule 14 of the Cenvat Credit Rules, 2004 read with section 11A of the Central Excise Act, 1944 and section 73 of the Finance Act, 1994 and read with section 11AB of the Central Excise Act, 1944 and section 75 of the Finance Act, 1994 for recovery of irregularly availed Cenvat credit and demanding interest respectively is perfectly in order and is within the framework of law. For the same reasons, proposal in the show-cause notice to impose penalty under rule 15 of the Cenvat Credit Rules, 2004 read with section 11AC of the Central Excise Act, 1944 and section 76 of the Finance Act, 1994 cannot be faulted. The appellants' averments in this regard lack substance and are devoid of any merit. The appeal filed by the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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.-CESTAT) in which it was held the mens rea is not required for imposition of penalty under section 76 of the Finance Act, 1994 and that the penalty provided under section 76 ibid is equivalent to the service tax not paid. 10. I have examined the position. I find that the Commissioner (Appeals) has imposed lesser penalty on the ground that lots of ignorance prevails at the assessees' level in the field of Service Tax even now. There is no denying this fact. It is taking time for the assessees to come to grips with ..... X X X X Extracts X X X X X X X X Extracts X X X X
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