AI Drafter 
TaxTMI 
TaxTMI 
2024 (11) TMI 1131
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....mpugned order-in-original the Ld. Adjudicating Authority has ordered as follows:- (a) Demand of service tax amounting to Rs. 3,83,71,415/- alleged to be of adjustment of service tax beyond permissible limit has been dropped. (b) Demand of service tax amounting to Rs. 28,24,469/-has been confirmed under the category of port service and Rs. 62,297/- has been confirmed under the category of GTA Service under proviso to Section 73(2) of the said Act. (c) CENVAT Credit of Rs. 2,85,577/- has been held as inadmissible in terms of Rule-14 of CENVAT Credit Rules read with Section 11A(2) of Central Excise Act, 1944. (d) Interest has been demanded on the amount of service tax and CENVAT Credit confirmed. (e) Penalty has been imposed upon the appellant amounting to Rs. 28,24,4669/-, Rs. 62,297/- & Rs. 2,85,577/- in terms of Section 78 of the said act and in terms of Rule-15(2) of the CENVAT Credit Rules, 2004 respectively. (f) A separate penalty of Rs. 10,000/- & Rs. 10,000/- has been imposed on the appellant under Section 77(2) of the said Act. 2.1. The appellant has filed this appeal against the confirmation of the demands and denial o....
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....ered by them. 3.4. The appellant further submits that the remaining twenty two invoices pertained to GTA service rendered to M/s. Tata chemicals Ltd., to shift goods from port area to dock godowns located outside the port area. In this regard, they submit that M/s. Tata Chemicals Ltd., being a registered company, paid the freight and therefore, in terms of Sub-clause (V) of Rule-2(1)(d) of Service Tax Rules, 1994, the service recipient is liable to pay service tax on the GTA service under reverse charge basis. Thus, the appellant contends that demand of service tax confirmed under the category of 'port service' is not sustainable. 4. Regarding denial of CENVAT Credit amounting to Rs.2,85,577/-, the appellant submits that, in the impugned order, the adjudicating authority has denied the above CENVAT credit on the ground that the invoices submitted by the appellant for availing the CENVAT Credit has the address of their headquarters. In this regard, it is contended that while giving the decision, the Ld. Commissioner has gone beyond the scope of the Show Cause Notice; the allegation made in the impugned Show Cause Notice was that the appellant is having other units but ....
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.... amended in the Finance Act, 2010 which is effective from 01.07.2010 whereas the period covered under the impugned Show Cause Notice is 2008-09. Thus, we observe that the amended definition of 'Port Service' which came into effect from 01.07.2010 is not applicable in this case. Accordingly, we hold that the services rendered by the appellant to the above said clients for handling export cargo in the docks area is appropriately classifiable as 'cargo handling service' and the same are excluded from payment of service tax as per the definition of 'cargo handling service', as defined under Section 65(23) of the Finance Act, 1994. Thus, we hold that the demand confirmed in the impugned order under the category of 'Port Services' is not sustainable. 7.2. Regarding the service rendered by the appellant to M/s. Tata Chemicals Ltd., to shift the goods from port area to dock godowns located outside the port area, we observe that the actual service rendered by the appellant is transportation of goods. M/s. Tata Chemicals Ltd., being a registered company, paid the freight and therefore, in terms of Sub-clause (V) of Rule-2(1)(d) of Service Tax Rules, 1994, w....
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.... to the Revenue (infact Revenue has gained). In the absence of any legal requirement to avail credit based on the services received during the relevant time and in the light of the decision cited by the learned counsel, the procedural irregularity has to be ignored and the demand confirmed has to be set-aside on this ground. In the result, demand for Cenvat credit of Rs. 1,07,07,142/- with interest and penalty equal to the same imposed under Section 11AC of Central Excise Act, 1944 are set-aside." 8.2. In the case of Commissioner of Central Excise, Bangalore-I Vs. Ecof Industries Pvt. Ltd. [2012 (277) ELT 317 (Kar.)], the Hon'ble Karnataka High Court has held as under: "4. The assessee had availed the Service tax credit based on the invoices issued by the Chennai office indicating that the Service tax are taken by their unit at Malur. That the Service tax paid by the Chennai unit pertains to advertisement of their product 'Sabena Dish Wash Bar' which was manufactured by their Cuttack Unit and not by the unit at Malur. Therefore, the assessee was dealing with the very same product. Rule 7 of the Cenvat Credit Rules governs procedure/manner of distribution of credit b....