2010 (9) TMI 398

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....cise, Mangalore. By the impugned order, Commissioner has disallowed cenvat credit to the tune of Rs. 5,09,85,560/- for the period April, 2007 to March, 2008 and the demand is confirmed in that regard along with interest thereon. The Commissioner has also confirmed the demand of service tax to the tune of Rs. 50,26,40,360/- along with Education Cess of Rs. 1,00,52,807/- and Secondary & Higher Education Cess of Rs. 50,26,404/- for the period from April, 2007 to March, 2008. The tax amount of Rs. 39,51,99,505/- already paid by the assessee for the said period has been appropriated. The demand has been confirmed along with interest payable thereon. Besides penalty of Rs. 200/- per day during which the failure continues or at the rate of 2% of s....

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.... submitted by the appellants on the basis of the auditors certificate in the case in hand has been rejected without any justifiable reason. He further submitted that as regards valuation aspect, the amount received in advance as commission, cannot constitute as an amount received for the services provided as such amount relates to the services yet to be provided and being so, cannot be subject matter of service tax. Attention was also drawn to the fact that such amount has been shown in the appellants accounts as the liability of the appellants and reliance is placed in the decision of the Hon'ble High Court of Gujarat in the matter of CCE&C, Vadodara-II v. Schott Glass India (P) Ltd. reported in 2009 (21) STT 111 (Guj.). = 2009 (14) S.T.R.....

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....for the relevant period in relation to the credit availed and utilized. Undoubtedly in relation to the earlier period, there was direction by the Tribunal with the observation that "We are of the considered view that once a statutory auditor gives a certificate, the said certificate should be considered as an evidence for substantiation to the claim for eligibility to cenvat credit". In other words, the Tribunal, in the appellants's own case in relation to prior period, had directed the Commissioner to take into consideration the auditor's certificate to decide as to whether there was a proof of availment and utilization of the cenvat credit in accordance with provisions of law, Nothing has been brought to our notice which could reveal that....