TaxTMI 
TaxTMI 
2010 (5) TMI 230
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....ed 21-8-09 passed by Commissioner, Central Excise (Appeals), Delhi - III, Gurgaon and also for stay on its recovery till the disposal of the appeal. The facts leading to this appeal and the stay applications are, in brief, as under. 1.1 The appellant are engaged in the manufacture of steel castings chargeable to Central Excise Duty under Chapter heading 761699.90 of the Central Excise Tariff. They also avail Cenvat credit of duty paid on inputs and of service tax paid on input service used in or in relation to the manufacture of the finished products. During the course of audit of the records of the appellant it was found that during the years 2005-2006 and 2006-2007 they had availed a taxable service falling their heading "consulting en....
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....al dated 19-11-08 by which the Additional Commissioner dropped the proceedings initiated against the appellant vide show cause notice dated 10-9-07. This order of the Additional Commissioner was reviewed by the Commissioner and on the Commissioner's directions, the Adjudicating Authority filed a review appeal before the Commissioner (Appeals) praying for setting aside of the Additional Commissioner's order and confirmation of the Cenvat credit demand against the appellant alongwith interest. The Commissioner (Appeals), in respect of the review appeal filed by the department, passed order-in-appeal No. 216/MA/GGN/09 dated 21-8-09 by which she set aside the Additional Commissioner's order and allowed the appeal filed by the revenue confirming....
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....have a strong prima facie case and, therefore, the requirement of pre-deposit of Cenvat credit demand and interest may be waived for hearing of the appeal. 2.2 Shri V. Choudhary, the learned DR, opposed the appellant's plea for waiver from the requirement of pre-deposit of Cenvat credit demand, and interest and defended the impugned order reiterating the Commissioner (Appeals) findings. He pleaded that the appellant are not eligible for the Cenvat credit and emphasised that as per the provisions of Rule 3(1)(ix) of the Cenvat Credit Rules, 2004, a manufacturer or output service provider is eligible to take credit in respect of Service Tax leviable under Section 66 of the Finance Act, 1994 only and this rule does not mention the service t....
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....ervice by a person in India from a foreign service provider, such service would be treated as taxable service in India, as if the same had been provided by the service recipient in India. Once the service recipient by the legal fiction of Section 66A becomes service provider, the service provided by him would attract the service tax at the rate prescribed under Section 66. Rule 2(1)(d)(iv) of the Service Tax Rules 1994 provides that the "person liable for paying service tax" means, in relation to any taxable service provided or to be provided by any person from a country other than India and received by any person in India under Section 66A of the Act, the recipient of such service. Thus, the service recipient in India receiving taxable ser....