2023 (3) TMI 438

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....d? (ii) If the services are classifiable under "Cargo Handling Services" whether the appellant has correctly availed and utilized Cenvat Credit of service Tax on input services which has been provided for the services in relation to export Cargo? (iii) Whether present Show Cause Notice is time barred or otherwise: (iv) Whether the penalties under Section 76 of Finance Act, 1994 and Section 78 ibid are imposable? 2. The brief facts of the case are that the appellant are engaged in providing the export Cargo Handling Service during the period June-2005 to September-2005. They have paid the Service Tax on such services and have availed Cenvat credit of the Service Tax paid on relevant input services. The case of t....

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....ad with Rule 15 of Cenvat Credit Rules, 2004. However, as provided in proviso to section 78 ibid, if the Noticee pays the amount of service tax confirmed along with interest thereon, within thirty days from the communication of this order, the amount of penalty shall be twenty-five per cent of the penalty imposed above. The benefit of reduced penalty shall be available only if the amount of penalty so determined has also been paid within thirty days from the receipt of this order. (iv) I impose penalty on the Noticee, M/s. Gautam Freight Private Limited, Gandhidham, under section 76 of the Finance Act. 1994 and accordingly order that the Noticee shall pay in addition to service tax payable upto 09.05.2008, out of the amount of serv....

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....not taxable but the appellant have admittedly paid the service tax which is more than the amount of Cenvat Credit availed on input service attributed to such export Cargo Handling Service. Therefore, the Cenvat credit cannot be said to have been taken wrongly. In support of his submission, he placed reliance on this Tribunal's decision in the case of GATEWAY DISTRIPARKS LTD Vs. COMMISSIONER OF C. EX., RAIGAD-2019 (28) G.S.T.L. 135 (Tri.-Mumbai). 4. On the other hand, Shri. Ghanasym Soni, learned Joint Commissioner (Authorized Representative) appearing on behalf of the revenue reiterates the finding of impugned order. He submits that the Cenvat credit on the input service is allowed only when the same is used on output service. In the pre....

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....ared to the input credit taken during each year. The appellant has given the below chart in this regard:- 5.1 From the above chart it appears that the appellant have paid more amount of service tax as against the input tax credit, therefore, there is revenue neutral situation in the present case, however, this worksheet was given first time before this Tribunal which needs to be verified. As regard, the Cenvat credit in respect to the input service used in the non taxable output service on which the service tax paid this Tribunal has considered the issue in the below judgment:- • Gateway Distriparks Ltd_Vs. CCE, Raigad-2019 (28) GSTL (135) (Tri.,- Mumbai) 6. We are of the view that the matter needs to be re considered in ....