2009 (3) TMI 100

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....mplied with the requirements of Notification No. 12/2003-S.T. as having failed to produce necessary certificate to the effect that the transporter had not availed the facilities under Cenvat Credit Rules, 2004 and such record did not disclose any such documentary evidence having been produced before the audit party or having been produced during the hearing of the matter before the Original Authority, confirmed the demand of service tax amounting to Rs. 11,29,077/- and Educational Cess amounting to Rs. 22,581/- under the provisions of Section 73(2) of the Finance Act, 1994 and further confirmed demand of interest at the rate of 13% on the said amount in terms of Section 75 of the said Act and imposed penalty of Rs. 200/- for every day durin....

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....r CENVAT Credit Rules, 2004 nor under Notification No. 12/2003-S.T. but they did not submit the same either to the Audit party or with their defence reply or at the time of personal Hearing." 5. In spite of the specific finding by the Original Authority that no such documentary proof in relation to certificate was produced before the Original Authority and, therefore, there was no material to substantiate the contention about non-availing of the Cenvat facility under Cenvat Credit Rules, 2004 by the transporter, the appellant made a categorical assertion that: "That the demand should not have been confirmed on the basis of unwarranted presumption and assumption, once the appellant submitted necessary certificates and promised to prese....

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....tral since Cenvat credit is clearly admissible to the appellant and also it can take the credit at any point of time. According to the appellant/applicant, the lower authorities as well as original authorities had wrongly rejected the claim. 8. The authorities below have rejected the said contention on the ground that, there is no provision in the Central Excise Act and Rules in that regard. Besides that, the liability of the tax was sought to be evaded by suppression of facts. 9. Undoubtedly, the decisions of the Apex Court in Narmada Chematur Pharmaceuticals Ltd. (supra) as well as Jamshedpur Beverages (supra) were in the facts of the case where the Modvat credit wrongly availed was found equivalent to the excise duty paid by not av....