2018 (7) TMI 93 – CESTAT MUMBAI – TMI – CENVAT Credit – duty paying documents – case of Revenue is that such credit was availed by the appellant on the input documents issued prior to 14.03.2003 which is violative of Service Tax Credit (Second Amendment) Rules, 2003 framed under N/N. 5/2003 dated 14.05.2003 vide sub-rule (1) of Rule 3 – Held that:- The payment in respect of all bills were made after 14.05.2003 and the cenvat credit was availed by the appellant between July 2013 and September 2013, as found from the appeal memo, which covers the case under proviso annexed to Rule 3 – appellant had not availed any cenvat credit in violation of Rule 3(1)(b) of Cenvat Credit Rules 2002 (second amendment) – appeal allowed – decided in favor of appellant. – Appeal No. ST/88138/17 – Order No. A/86777 / 2018 – Dated:- 21-6-2018 – Hon ble Dr. Suvendu Kumar Pati, Member ( Judicial ) Shri Keval Shah, Advocate for the appellant Shri Vivek Dwivedi, AC (AR) for the respondent ORDER Refusal of cenva
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d by the appellant on the input documents issued prior to 14.03.2003 which is violative of Service Tax Credit (Second Amendment) Rules, 2003 framed under Notification no 5/2003 dated 14.05.2003 vide sub-rule (1) of Rule 3. Reply to Showcause notice was found not convincing in its totality and vide his order dated 30.10.2008 Jt. Commissioner of Service tax, Mumbai allowed cenvat credit of ₹ 9,911/- as he found some bills/ challans had fallen under same category of taxable service for which credit is admissible under Rule 3(1)(a) of Cenvat Credit Rules 2002 but confirmed the demand of ₹ 8,07,650/- holding availment of such cenvat credit as inadmissible along with interest at appropriate rate and penalty of same amount demanded. 3. In his memo of appeal and during course of hearing of appeal, the ld. Counsel for the appellant Shri Keval Shah submitted that the Ld. Commissioner has erred in not allowing cenvat credit and also erred in invoking the extended period of limitation
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case input service for which invoice/ challan issued after the 14th day of May 2003 would only be considered for service tax credit as found under annexure A to the show-cause notice. All those bills are raised before the appointed day and therefore he justified the order passed by the Commissioner (Appeals) and first adjudicating authority and sought no interference by this Tribunal. 5. Heard both sides at length and perused the relevant amended rule of 2002 and the documents placed on record. Before going to the legality of availment of cenvat credit by the appellant, the issue to be considered by the court which also includes interpretation of cenvat credit in respect of input services used for providing of output services. Ld. Counsel for the appellant was appraised that such interpretation concerning the classification of services is not within the competency of this single bench jurisdiction to which he replied that he would accept the order of the adjudicating authority to the e
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or bill or challan is issued on or after the fourteenth day of May, 2003: Provided that the output service provider shall be allowed to take such credit, on or after the day on which he makes payment of the value of input service and the service tax paid or payable as indicated in invoice or bill or challan referred to in sub-rule (1) of rule 5. 6. As found from the orders passed by the first adjudicating authority and the Commissioner (Appeals) as well as referred in the show-cause notices, the grounds for upholding such availment of cenvat credit as inadmissible, only sub-rule (a) and (b) of Rule 3(1) has been referred and the proviso annexed thereof has been ignored by the respondent department and the adjudicating authority as well as appellate authority. In drawing the attention of this court to Annexure A of notice to show-cause which contains a column as the date of payment, the ld. Counsel for the appellant indicated payment in respect of all bills/ invoices were made after 14.
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