2018 (12) TMI 86 – CESTAT CHANDIGARH – TMI – Extended period of limitation – no malafide intent – revenue neutral situation as whatever service tax was paid by the appellant was entitled for cenvat credit – paymnet of service tax with interest on being pointed out – penalty for the normal period – Held that:- Whatever amount of service tax is to be paid by the appellant under reverse charge mechanism, the appellant entitled to avail cenvat credit. In that circumstances, relying on the decision of this Larger Bench in the case of Jay Yuhshin Ltd. [2000 (7) TMI 105 – CEGAT, COURT NO. I, NEW DELHI], the extended period of limitation is not invokable.
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Penalty for the demand within normal period – Held that:- The extended period of limitation is not invokable, consequently, for the demand within the period of limitation penalty is not imposable on the appellant – As extended period of limitation is not invokable, therefore, a show cause notice was not required to be issued to the app
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cause notice dated 10.04.2017 was issued to the appellant to demand service tax along with interest and to impose penalty under Section 76, 77 & 78 of the Finance Act, 1994 and to appropriate the amount already paid by the appellant. The matter was adjudicated and demand of service tax for the entire period was confirmed along with interest and penalty under Section 77 & 78 of the Act were imposed and amount already paid was appropriated. Against the said order, the appellant is before me. 3. The ld. Counsel for the appellant submits that in this case whatever service tax was paid by the appellant was entitled for cenvat credit to them, in that circumstances, no mala-fide can be attributable against the appellant. Hence, the extended period of limitation is not invokable, therefore, the demand pertains to the extended period of limitation are to be set aside and for the demands within the period of limitation, it is his submissions that as the appellant has paid service tax alo
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ed on the appellant or not? (A) Whether in the facts and circumstances of the case, the extended period of limitation is not invokable or not? I find that in this case whatever amount of service tax is to be paid by the appellant under reverse charge mechanism, the appellant entitled to avail cenvat credit. In that circumstances, relying on the decision of this Larger Bench in the case of Jay Yuhshin Ltd. reported in 2000 (119) ELT 718 (Tri. LB), I hold that extended period of limitation is not invokable, therefore, the demand pertaining to the extended period of limitation is set aside. Consequently, no penalty is imposable. (B) For the demand within limitation whether penalty under Section 77 & 78 can be imposed on the appellant or not? As discussed hereinabove that extended period of limitation is not invokable, consequently, for the demand within the period of limitation penalty is not imposable on the appellant. Moreover, in this case, the appellant has paid service tax along
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