2018 (12) TMI 366 – CESTAT NEW DELHI – TMI – Short payment of service tax – mining of mineral, oil or gas services provided to Madhya Pradesh State Mining Corporation Ltd. – suppression of facts – penalty – Held that:- There appears no infirmity in the findings based on the statement of services provided during the relevant year, as provided by the appellant alongwith the ledger accounts of the service recipients that the appellant have paid service tax in excess during the period in question and that the charge of short payment of service tax as alleged in Show Cause Notice is not based on any evidential proof – demand withheld.
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CENVAT credit wrongly availed – wrongly availed credit utilised for payment of service tax for the period July-September 2012-13 – the credit has been availed on the purchase of two machines vide two invoices dated 06.06.2011 and 24.12.2011 which were to be used to execute the work order of mining between the Corporation and the appellant – Held that:-
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as wrongly been considered as a ground to deny the availment of cenvat credit on the capital goods used by the appellants for providing the output service – credit allowed.
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Non-payment of late fees – ST-return for the period April-September 2011-12 filed on 22.04.2012 i.e. after a delay of 98 days – Held that:- It is observed that details of amount received and service tax paid for the last 5 years of period in dispute were provided by the appellant to the Department. Based thereupon, it is the finding of the authorities below that the service tax was paid in excess by the appellant during the period in question. Confirming the demand of late fee is apparently a contradictory finding and resultantly is not sustainable – demand set aside.
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Penalty – Held that:- The onus was of the Department to prove the suppression of fact on part of the appellant to evade the payment of duty but the record of the matter and even the findings of the appellate authority are sufficient to prov
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h State Mining Corporation Ltd. (hereinafter called as Corporation), however is not discharging the whole tax liability. Notices were accordingly served to the appellant to provide the requisite documents. Despite repeated reminders, the documents were not provided by the appellants. It is in furtherance of notices to the Corporation that details of payment made to the noticee alongwith the copies of bills issued by the noticee for the period of 2011-12 to 2015-16 alongwith the copies of work order between them were provided to the Department. On perusal thereof, the Department alleged as follows: (i) Noticee/ appellant have short paid the service tax amounting to ₹ 11,43,240/- during financial year 2011-12 to 2015-16 and has suppressed the facts from the Department. (ii) The appellant has wrongly availed the cenvat credit of ₹ 4,58,476/- on capital goods and utilised the same for payment of service tax for the period July-September 2012-13. (iii) The appellant has filed ST
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eriod of time, appellant were executing mining contracts at Hirapur, District Sagar as well as at Megh Nagar District Jhabua. For the purpose of excavation of rock phosphate and crushing the same, appellant ordered two machines for executing the contract at Megh Nagar site however by the time machines could arrive, the machines were diverted to appellant s Hirapur site where the credit was taken during quarter April-June 2011 and same was duly exhibited/ reported in appellants ST-3 return for the period April-June 2012. It is further submitted that ST-3 returns both for Megh Nagar for the period October 2011 to June 2012 and for Hirapur for the period April 2011 and June 2012 were duly enclosed on the record showing that the appellant has availed credit only at Hirapur site and not at Megh Nagar site. Resultantly, the cenvat credit availed has wrongly been denied to the appellant. The appellant had made a substantial compliance of Rule 9 of Cenvat Credit Rules, 2004 however with minor
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n the Order under challenge. Appeal is prayed to be dismissed. 5. After hearing both the parties and perusing the entire record, we are of the opinion that the demand of alleged short levy has already been dropped by the authorities below. No appeal has been filed by the Department against the same. There otherwise appears no infirmity in the findings based on the statement of services provided during the relevant year, as provided by the appellant alongwith the ledger accounts of the service recipients that the appellant have paid service tax in excess during the period in question and that the charge of short payment of service tax as alleged in Show Cause Notice is not based on any evidential proof. The findings are therefore upheld. 6. Now coming to the findings about confirming the recovery of the Cenvat credit of ₹ 4,58,476/- alleging the same to be wrongly availed. It is observed that the credit has been availed on the purchase of two machines vide two invoices dated 06.06
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is rather permissible to be taken on both these machines by the appellants in another unit irrespective of the invoices showing the different address of the appellant. We draw our support from the decision of this Tribunal in the case Tooltronic Vs. C.C.E. 2006(205) E.L.T. 946. Even the CBEC Circular as relied upon by the appellant has clarified that where the goods are ordered by registered / head office of the assessee and the invoice does not bear the consignee address, the credit ought not to be denied. 7. Now coming to the alleged lapse on part of the appellant qua the alleged procedural compliance, we are of the opinion that irrespective the Rule 9 required the production of original documents with complete particulars but it is quite oblivious that if the documents is not produced in original or if lost, the claim will not to be defeated especially when the Department is not in dispute about receipt of goods, their use in providing the output service and about the duty paid cha
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d by the appellants for providing the output service. Similarly, the findings about absence of all the particulars as prescribed under Central Excise Rules, 2002 / Rule 9(2) of CCR, 2004 are not sustainable. These findings are therefore set aside. 8. Now coming to the allegation of payment of late fee, it is observed that details of amount received and service tax paid for the last 5 years of period in dispute were provided by the appellant to the Department. Based thereupon, it is the finding of the authorities below that the service tax was paid in excess by the appellant during the period in question. Confirming the demand of late fee is apparently a contradictory finding and resultantly is not sustainable. 9. Finally coming to the imposition of penalty, the onus was of the Department to prove the suppression of fact on part of the appellant to evade the payment of duty but the record of the matter and even the findings of the appellate authority are sufficient to prove that the app
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