TMI Blog2023 (7) TMI 1327X X X X Extracts X X X X X X X X Extracts X X X X ..... US INDEOS ABS LIMITED [ 2010 (3) TMI 656 - GUJARAT HIGH COURT ] and COMMISSIONER VERSUS INDEOS ABS LTD [ 2011 (3) TMI 1575 - SC ORDER ] it is found that whenever there is a revenue neutral situation no malafide should be attributed to the assessee. Considering the aforesaid settled legal position in the present case the penalties imposed by the Adjudicating Authority are not sustainable. Hence, the same are set aside. However, the service tax paid by the appellant is maintained on conceding by the learned Chartered Accountant. Consequently, the interest on service tax demand is also sustained and the same is recoverable from the appellant. The impugned order stands modified - Appeal allowed in part. - HON'BLE MEMBER (JUDICIAL), MR. RAMESH NAIR AND HON'BLE MEMBER (TECHNICAL), MR. C.L. MAHAR For the Appellant : Shri S.S Gupta Shri Mehul Jiwani, Chartered Accountants For the Respondent : Shri Tara Prakash, Deputy Commissioner (AR) ORDER RAMESH NAIR The brief facts of the case are that the appellant are engaged in the manufacture of glass bottles. They have received the services namely Market Survey fees, Export Promotional Expenses, T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is time bar as per following judgments:- M/s. Pannu Property dealers reported in 2011-24-STR-173 M/s. Chanasma Taluka Sarvoday Mazdoor reported in 2012 TIOL-41- CESTAT- Ahmed. He further submits that in view of above since the tax itself was not payable the penalty being consequential the demand of service tax will also not sustain. 3. On the other hand, Shri Tara Prakash, Learned Deputy Commissioner (AR) appearing for the Revenue reiterates the finding of the impugned order. 4. We have carefully considered the submission made by both sides and perused the records. We find that the appellant have challenged the taxability only for setting aside the penalties. We find that without going into merit of taxability the issue of penalty or otherwise also can be decided on the submission of revenue neutral. The appellant being a manufacturer and exporter of the goods all the services received by the appellant are in relation to export of goods. The details of the services are given below:- Sr No. Description of Service Nature of Service Category of Service Amount ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aluation of goods manufactured by assessee despite the fact that the Adjudicating Authority had discussed the said issue at length in the adjudication order. 3. As can be seen from order of the Tribunal dated 10-11-2008 impugned in this appeal, the Tribunal has disposed of the appeal holding that the goods manufactured by the assessee were being cleared to its own sister concern, who is availing the benefit of Modvat Credit. The Tribunal has further found that as such whatever duty the assessee was paying was available as credit to its own unit (sister concern) and hence the entire exercise was revenue neutral. 4. The aforesaid findings of facts are not disputed. The grievance was that the aspect of undervaluation has not been considered by the Tribunal at all. Grievance would have merited acceptance if the ultimate exercise would have benefited the Revenue by collection of duty in the coffers of the exchequer. In the facts of the present case, admittedly no such benefit accrues to the exchequer. In the circumstances, if the Tribunal has chosen not to determine an academic issue, it is not possible to state that any legal infirmity exists in the impugned order of the Tribunal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tand taken by the assessee in the counter-affidavit and the statement made by the learned counsel for the assessee, the appeals are dismissed leaving the question of law open. However, there shall be no order as to costs. 8. If upon verification, the submission of the counsel for the assessee is found to be incorrect, liberty is granted to the appellant-Revenue to mention the matter before this Court. Texyard International Vs. Commissioner of C.Ex., Trichy 2015 (40) STR 322 (Tri. Chennai) 8. It is further pertinent to mention that appellants are manufacturer-exporters. Service tax if any payable under reverse charge is permissible to be availed as Cenvat credit and that may be refundable under Notification No. 41/2007 unless otherwise deniable by law. The provision made in Central Excise Rules and Cenvat Credit Rules ensures that tax is not added to the cost of export so that Indian exporter can compete with overseas market. The Hon ble Supreme Court in CCE v. Coca Cola India (Pvt.) Ltd. - 2007 (213) E.L.T. 490 dismissed Revenue s appeal holding that when an assessee is eligible to Modvat credit, the situation becomes revenue-neutral. In the present case, service tax d ..... X X X X Extracts X X X X X X X X Extracts X X X X
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