TaxTMI 
TaxTMI 
2010 (6) TMI 464
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....d of essential details, (2) invoices not in the name of the assessee, (3) photocopies of invoices and (4) debit notes etc. Coming to a conclusion that these documents are not documents prescribed for availment of cenvat credit as per Rule 9 of Cenvat Credit Rules, 2004, the appellants were issued show cause notice for the reversal of the said credit availed by them. The appellants vide their reply dt. 11-12-2006 gave detailed explanation as regards the credit availed by them and submitted that the said credits are eligible credits and they have to be allowed to them. Adjudicating authority after considering the submissions made by them, came to the conclusion that the credit availed by the appellant is incorrect and coming to such conclusion, he confirmed few of the demands raised and dropped few of the demands. Against the demands confirmed by the adjudicating authority, the appellant/assessee is before us. As against the dropping of the demands as initiated by the show cause notice, Revenue has not filed any appeal. 3.Ld. Counsel appearing on behalf of the appellant would submit as under :- I. As regards the disallowance of Cenvat credit on improper documents, he wo....
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....it in the year 2006. IV. As regards the demand of service tax of Rs. 20,72,665/- + Edu. Cess Rs. 41,453/- and demand of Rs. 27,61,934/- + Edu. Cess Rs. 55,239/-, it is his submission that these are the amounts which have been paid by them they are not seriously challenging the same. V. As regards the amount of Rs. 5,86,185/- + Edu. Cess Rs. 11,950/-, he would submit that these demands have arisen on the ground that the appellant had conducted auction of cargo not cleared by the importer and the Revenue wants to tax the same under the category of port services. He would submit that this is not a service provided by the importer and auction proceeds cannot be subjected to service tax. VI. As regards, demand of service tax of Rs. 5,86,185/- + Edu. Cess Rs. 11,724/-, it is his submission that the charges which are sought to be taxed by the authorities are collected in nature of the fees for making available infrastructure for facilitating customs examination. It is his submission that these facilities have nothing to do with the actual services of port services in respect of vessels or goods. He would rely upon the decision of this Bench in the case of Cochin Inter....
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.... 41,453/- on the services which were procured by the appellant from the foreign consultant is not challenged by them. It is also seen from the records that the appellant has not challenged the service tax liability of Rs. 27,61,934/- + Edu. Cess Rs. 55,239/- on the amount of re-imbursement of the expenses and the royalty payments made by them. It is also seen that the appellant is not challenging the amount of service tax credit of Rs. 1048/- taken by them on the hotel bills. Since the appellant is not challenging the above said three amounts, the impugned order to the extent they confirm the demand of service tax and seek reversal of the Cenvat credit as indicated herein above is upheld. Since the appellant has not challenged the amounts as indicated herein above, the appellant is also liable to pay interest on the said amounts. On perusal of the Order-in-Original, we find that the adjudicating authority has imposed penalties under Sections 76 & Section 78 of the Finance Act, 1994 in a consolidated manner and hence the penalty on the above three items will be restricted as per the provisions of Section 76 & 77 of the Finance Act, 1994. As regards the penalty under Section 78 on th....
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....ould be only an academic exercise as the appellant would have got the credit in the next year. In view of this, we hold that the amount of Rs. 3,93,893/- which is confirmed by the adjudicating authority is incorrect and confirmation is liable to be set aside and we do so. At the same time, we find that the appellant has utilized the said credit for discharging his service tax liabilities on the services rendered by him. Having utilized the said amount, the appellant is liable to pay the interest for the period he utilized the said credit for the discharge of service tax liability. Lower authorities may work out the amount of interest liable to be paid by the appellant on this issue. Since we set aside the demand, the question of imposition of penalties on the appellant on this count does not arise. 9. As regards the service tax liability on the terminal charges/port charges retained by the appellant from out of the sale proceed of auction of goods that were not cleared by the importers, we find that conducting of an auction of the cargo not cleared by the importers is not a service rendered to importers. The said auction proceeds are adjusted by the port authorities towards t....