TMI Blog2024 (3) TMI 756X X X X Extracts X X X X X X X X Extracts X X X X ..... interest and equal amount of penalty, this itself shows that there is no suppression of fact on the part of the appellant in payment of service tax on the ocean freight - it is observed that unless until the issue of suppression of fact is adjudicated in a demand case, the allegation of suppression of fact is based on assumptions and presumptions only. Accordingly, it cannot be said that there is suppression of fact in payment of service tax on ocean freight in the present case. In view of the decision in PACIFIC HARISH INDUSTRIES LIMITED VERSUS COMMISSIONER OF CENTRAL EXCISE ST, SURAT [ 2019 (10) TMI 626 - CESTAT AHMEDABAD] , it is settled law that under the identical circumstances, suppression of fact cannot be alleged. Accordingly, the appellant was entitled for the Cenvat credit and therefore, they were also entitled for the consequential refund of the service tax along with interest paid on ocean freight. The appellant is entitled for the Cenvat credit and refund thereof along with interest paid on such service tax. Since with the present litigation there is delay in giving refund, appellant is also etitled for interest on refund amount in terms of Section 11BB of Central Exci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not entitled for refund thereof. I find that the service tax on ocean freight was paid by the appellant only on insistence by the audit party whereas levy of service tax on the ocean freight was debatable and various litigation were going on and finally it was held that ocean freight is not liable to service tax, despite this the appellant have paid the service tax on the ocean freight alongwith interest. 4.1 Moreover, the appellant was not issued any show cause notice invoking the extended period for demand of service tax, interest and equal amount of penalty, this itself shows that there is no suppression of fact on the part of the appellant in payment of service tax on the ocean freight. I also observed that unless until the issue of suppression of fact is adjudicated in a demand case, the allegation of suppression of fact is based on assumptions and presumptions only. Accordingly, it cannot be said that there is suppression of fact in payment of service tax on ocean freight in the present case. 4.2. The identical situation has been considered by this Tribunal in the case of Pacific Harish Industries (Supra) wherein the following order was passed :- 4. Heard both sides and perus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 9 (bb) of the CCR 2004. We also find that the decision relied upon in Essar Oil Ltd. Vs CCE Rajkot - 2014 (303) ELT 255 (Tri.-Ahmd.) is applicable on all fours to the issue at hand. The relevant portion of the said decision is reproduced as under : 5.3 From the above prescription, it is evident that for the preparation of an invoice, there has to be a buyer to whom goods are sold. Further, Rule 11(7) of the Central Excise Rules, 2002 prescribe the following : Goods to be Rule 11. removed on invoice.- The provisions of this rule (7) shall apply mutatis mutandis to goods supplied by a first stage dealer or a second stage dealer : Provided that in case of the first stage dealer receiving imported goods under an invoice bearing an indication that the credit of additional duty of customs levied on the said goods under sub-section (5) of Section 3 of the Customs Tariff Act, 1975 (51 of 1975) shall not be admissible, the said dealer shall on the resale of the said imported goods, indicate on the invoice issued by him that no credit of the additional duty levied under sub-section (5) of Section 3 of the Customs Tariff Act, 1975 shall be admissible; Provided further that in case of the se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... law laid down by Delhi CESTAT in the case of Birla Jute Manufacturing Co. Ltd. v. CC, Calcutta (supra). In Para 7 of this judgment, inter alia, it was held that refund claims and demands under Section 27 Section 28 of the Customs Act, 1962 do involve re-assessment of the duty originally assessed. Further, as per the judgment of CCE, Raipur v. Ambuja Cement Eastern Ltd. (supra) Cenvat credit will be admissible on duty paying TR-6 challan when it is not disputed that goods were used in the manufacture of excisable goods to be cleared on payment of duty. Further, in Para 40 of the judgment of Karnataka High Court in the case of Karnataka Soaps Detergent Ltd. v. CCE, Mysore (supra) it is held that documents specified in Rule 7 (present Rule 9 of Cenvat Credit Rules, 2004) of the earlier Cenvat Credit Rules is only illustrative in nature and cannot bar taking of Cenvat credit under Rule 3 of Cenvat Credit Rules. When additional duty is paid under reassessment or on being pointed out by the Revenue then the credit of such duty paid will be admissible as Cenvat credit to the appellant under Rule 9(1)(c) of the Cenvat Credit Rules, 2004. In view of the above settled position of law, the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he same as per Rule 9 of the Cenvat Credit Rules, 2004. 6. From reading of above Section 73 (4A) it is seen that it starts with the terms not with-standing anything contained under 73 (4A) which deals with situation whether there is a fraud or collusion or willful misstatement or suppression of fact etc, therefore, when the appellant have availed Section 73 (4A) and the case of non-payment of Service Tax stood concluded by making payment of Service Tax along with interest and 15% penalty, it cannot be said that there is suppression of fact on the part of the appellant. Moreover by availing the provision of Section 73 (4A), no adjudication process is required to be carried out. When there is no adjudication, whether there is fraud or collusion or willful misstatement or suppression of fact the same is not established, therefore, after making the payment under Section 73 (4A), the case stand concluded, there cannot be charge of fraud or collusion or willful mis statement or suppression of fact etc. Accordingly, credit on that amount cannot be denied. The same issue has been stated of this Tribunal in the case of Shi Lifters (Supra) wherein the Tribunal held that when the payment unde ..... X X X X Extracts X X X X X X X X Extracts X X X X
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