TaxTMI 
TaxTMI 
2019 (10) TMI 626
X X X X Extracts X X X X
X X X X Extracts X X X X
....nalty. The case of the department is that whether the appellant, admittedly paid the service tax, interest and 15% of penalty, is a case of suppression of facts, and as per Rule 9(1)(bb) of Cenvat Credit Rules, 2004, the appellant are not entitled for the credit. 2. Shri S.J. Vyas, Learned Counsel appearing on behalf of the appellant submits that the entire basis for denial of Cenvat credit is reliance on the provisions of Rule 9(1)(bb) of Cenvat Credit Rules, 2004. He submits that the Rule 9(1)(bb) is not applicable in the case where service tax is payable by the appellant under reverse charge mechanism, for the reason that; firstly, it is not a case of supplementary invoices and secondly, Rule 9(1)(bb) is not applicable to the service p....
X X X X Extracts X X X X
X X X X Extracts X X X X
....12 issued to them demanding the equal service tax under Section 73 (1) ibid. The adjudicating authority in the impugned order has confirmed demand of the said amount availed by the appellants as being ineligible input service tax credit taken by them. We find that entire demand relates to Rule 9 (bb) of the CCR 2004 which reads as under : "A supplementary invoice, bill or challan issued by a provider of output service, in terms of provisions of service tax rules, 1994 except where the additional amount of tax became recoverable from the provider of service on account of non-levy or non-payment or short-levy or short-payment by reason of fraud or collusion or wilful mis-statement or suppression of facts or contravention of any of the prov....
X X X X Extracts X X X X
X X X X Extracts X X X X
....tion 3 of the Customs Tariff Act, 1975 (51 of 1975) shall not be admissible, the said dealer shall on the resale of the said imported goods, indicate on the invoice issued by him that no credit of the additional duty levied under sub-section (5) of Section 3 of the Customs Tariff Act, 1975 shall be admissible; Provided further that in case of the second stage dealer receiving imported goods under an invoice bearing an indication that the credit of additional duty of customs levied on the said goods under sub-section (5) of Section 3 of the Customs Tariff Act, 1975 (51 of 1975) shall not be admissible, the said dealer shall on the resale of such imported goods, indicate on the invoice issued by him that no credit of the additional duty le....
X X X X Extracts X X X X
X X X X Extracts X X X X
....because an "Explanation‟ introduced in the Rule can only clarify the provisions of Rule 9(1)(b), which involve sale of goods and cannot elaborate the scope of Rule 9(1)(b) of the Cenvat Credit Rules, 2004. In the case of import, assessment of duty is always paid by an importer under the challans and endorsement to that effect is made on the body of Bill of Entry. In the present facts and conditions of the case, it has to be held that payment of differential duty was paid as a result of re-assessments with respect to imported capital goods as per law laid down by Delhi CESTAT in the case of Birla Jute Manufacturing Co. Ltd. v. CC, Calcutta (supra). In Para 7 of this judgment, inter alia, it was held that refund claims and demands under....
X X X X Extracts X X X X
X X X X Extracts X X X X
....the records, I find that the dispute to be settled is whether the appellant is entitled for Cenvat Credit in respect of Service Tax paid belatedly on the services received from abroad under Reverse Charge Mechanism. The lower authority denied the credit only by invoking Rule 9(1)(bb) of Cenvat Credit Rule, 2004, which reads as under: "Rule 99(1) (bb) a supplementary invoice, bill or challan issued by a provider of output service, in terms of the provisions of Service Tax Rules, 1994 except where the additional amount of tax because recoverable from the provider of service on account of non-levy or non-payment or short-levy or short-payment by reason of fraud or collusion or wilful misstatement or suppression of facts or contravention of ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... when the appellant have availed Section 73 (4A) and the case of non-payment of Service Tax stood concluded by making payment of Service Tax along with interest and 15% penalty, it cannot be said that there is suppression of fact on the part of the appellant. Moreover by availing the provision of Section 73 (4A), no adjudication process is required to be carried out. When there is no adjudication, whether there is fraud or collusion or willful misstatement or suppression of fact the same is not established, therefore, after making the payment under Section 73 (4A), the case stand concluded, there cannot be charge of fraud or collusion or willful mis statement or suppression of fact etc. Accordingly, credit on that amount cannot be denied. T....