2013 (10) TMI 862

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....being provided by them they were not paying service tax. In 2010, in course of audit of their records, when non-payment was detected, M/s. R.K. Gupta paid the service tax of Rs.74,150/- in respect of those services provided to the appellant under an invoice dated 10.2.2010. On the basis of this invoice, the appellant took cenvat credit of this amount. The department was of the view that the invoice issued by M/s. R.K. Gupta to the appellant is supplementary invoice and since non-payment of service tax by M/s. R.K. Gupta was on account of wilful suppression of facts, etc., the appellant cannot take cenvat credit of this service tax on the basis of this invoice, in view of the provisions of the Rule 9(1)(b) of the Cenvat Credit Rules. On this....

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....on the input services, even if paid subsequently under supplementary invoices, cannot be denied, that the same view has been taken by the Tribunal in the case of Imagination Technologies India P. Ltd. Vs. CCE, Pune-III reported in 2011 (23) STR 661 (Tribunal-Mumbai), that in view of this, the appellant have strong prima facie case in their favour and hence, the requirement of pre-deposit of cenvat credit demand, interest and penalty may be waived and recovery thereof may be stayed till the disposal of the appeal. 4. Shri A.K. Jain, learned Joint CDR, opposed this stay application by reiterating the findings of the Commissioner (Appeals) and emphasized that the non-payment of service tax by M/s. R.K. Gupta, the service provider in respect....