TaxTMI 
TaxTMI 
2024 (8) TMI 718
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....Bangalore. 2. Briefly stated the facts of the case are that the appellant are engaged in providing taxable service viz. 'Business Support Services', 'Maintenance or Repair Services' and 'Commercial Coaching and Training Services' etc. during the relevant period. On the basis of the Central Excise Revenue Audit on scrutiny of their records, it revealed that they had availed inadmissible cenvat credit amounting to Rs.2,03,69,372/- during the period from September 2004 to November, 2006 on inputs which were not used in providing the output services but were removed from the registered premises "as such" for the purpose of trading activity. The amount equivalent to the cenvat credit availed on such goods being not admissible, later they have....
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....ST, Bangalore [2016(42) STR 273 (Tri. Bangalore)] ii. General Manager (CMTS) Vs. Commissioner [2014(36) STR 1084 (Tri.)] iii. Chola Business Services Ltd. Vs. CST, Chennai [2017(47) STR 192 (Tri. Chennai)] 2.2. Further, the learned advocate has submitted that the appellant had paid Rs.2,89,78,046/- on export of services which they are eligible to claim refund and instead of adjusting the said amount against the liability of Rs.2,03,69,372/- by way of filing refund claim under Section 11B of the Central Excise Act, 1994 would be a additional procedure which is against the spirit of provisions relating to adjustment of excess payment. In support, he has referred to the following decisions:- i. Nirma Architects & ....
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....tation since there had been continuous communication between the appellant and the Department about the adjustment of the excess service tax paid since February 2007 and the show-cause notice has been issued on 15.06.2009 after they have discharged the amount of Rs.46,84,505/- by way of interest i.e. after about 2 years from the date of occurrence of the event. Therefore, the demand is barred by limitation. In support, they have referred to the following decisions: i. CCE Vs. Manuelsons Wood Industries [2007(210) ELT 230 (Tri. Bang.)] ii. Highland Dye Works Pvt. Ltd. Vs. CCE [2000(121) ELT 502]; affirmed by Supreme Court 2006(198) ELT A66 (SC). iii. RAD MRO Manufacturing Pvt. Ltd. Vs. CCE [2010(258) ELT 235 (Tri. ....
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.... by him (calculated on a pro rata basis) against the service tax liability for the subsequent period, if the assessee has refunded the value of taxable service and the service tax thereon to the person from whom it was received. 7. A plain and simple reading of the same makes it clear that in the event, the assessee pays service tax in respect of a taxable service which is not paid by either wholly or partially for any reason, he may adjust the service tax so paid by him against the service tax liability for the subsequent period. Therefore, it is clear that the assessee is allowed to adjust service tax excess paid against the service tax liability for the subsequent period. Whereas in the present case, the appellant had erroneously avai....
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.... of CENVAT credit wrongly taken." [Notification No. 3/2013-C.E. (N.T.), dated 1-3-2013] Therefore, recovery of the said cenvat credit by the learned Commissioner is erroneous. This principle has been laid down by the Tribunal in the case of Ericsson India Pvt. Ltd., which later followed in GKN Driveline (India) Ltd. (supra), which reads as:- 12. After considering the submissions of both the parties and perusal of material on record, we find that the appellant as per the normal commercial practice in the automobile industry has made a provision for writing off the cenvat credit on inputs as per Rule 3(5B) of the Cenvat Credit Rules, 2004. During the audit, the department was of the view that the appellant is required to ....
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....wn of value of inputs , the provision was introduced only first time by amendment of Rule 3(5B) of Cenvat Credit Rules, with effect from 01.03.2011. Further, there was no provision prior to 01 March 2013 for recovery of cenvat credit and interest thereon under Rule 3(5B) etc. which was made applicable with effect from 01.3.2013 only, by virtue of Notification No. 3 of 2013-CE(NT) dated 01.03.2013. The notification provides that if the manufacturer of goods or the provider of output service fails to paythe amount payable under sub-rule (5), (5A) and (5B), it shall be recovered, in the manner as provided in Rule 14, for recovery of CENVAT credit wrongly taken. 8. Learned Counsel have also pressed the ground that as they were not required to r....