TaxTMI 
TaxTMI 
2025 (10) TMI 450
X X X X Extracts X X X X
X X X X Extracts X X X X
....ese appeals is common. 2. Brief facts as culled out from the appeal records are that the Assessee, M/s. Pioneer Jellice India Private Limited (previously known as Pioneer Miyagi Chemicals (P) Ltd.) are holders of Central Excise registration No. AAACD8978MXM001 who are engaged in the manufacture and clearing of Gelatine, Ossein, Di- calcium Phosphate under Chapter sub-headings 350300200, 35061039 and 28352500, respectively, under the Central Excise Tariff Act, 1985. The Assessee also avails input credit, capital goods credit and input service credit under Cenvat Credit Rules, 2004. 3. On the basis of intelligence received, DGCEI Madurai has initiated investigation to demand service tax under the Renting of Immovable Property Service ag....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ssessee basing on such supplementary invoice is in contravention of Rule 9(1)(bb) of the CCR, 2004 and accordingly, should be recovered along with interest in terms of Rule 14 of the CCR, 2004 read with Section 11A(1) and Section 11AA of the Central Excise Act, 1944 along with penalty under Rule 15(1) of the CCR, 2004. Accordingly, the Show Cause Notice dated 14.05.2015 was issued to the Assessee herein. 7. In accordance with the procedure, a reply to the Show Cause Notice was submitted by the Assessee on 27.07.2015, consequent upon which the order impugned herein came to be passed vide Order-in-Original No. 34/2015 dated 28.09.2015 confirming the proposals of the Show Cause Notice, while refraining from demand of interest since it was f....
X X X X Extracts X X X X
X X X X Extracts X X X X
....d or erroneously refunded, but the true and complete details of transactions are available in the specified records, the person chargeable to service tax or to whom erroneous refund has been made, may pay the service tax in full or in part, as he may accept to be the amount of tax chargeable or erroneously refunded along with interest payable thereon under section 75 and penalty equal to one per cent of such tax, for each month, for the period during which the default continues, up to a maximum of twenty-five per cent of the tax amount, before service of notice on him and inform the Central Excise Officer of such payment in writing, who, on receipt of such information, shall not serve any notice under sub-section (1) in respect of the amoun....
X X X X Extracts X X X X
X X X X Extracts X X X X
....hat the said amount has been paid by PAIPL consequent to the recovery proceedings initiated by the Department on the ground of suppression, wilful misstatement, fraud, etc., with an intention to evade duty and hence, availment of CENVAT credit was barred in terms of Rule 9(1)(bb) of the CCR, 2004. 13. Whereas, the Assessee contends that Rule 9(1)(bb) of CCR, 2004, contemplates a specific situation namely, recovery of the amount consequent to the proceedings initiated under Section 73 of the Finance Act, 1994 on the ground of suppression of fact, wilful misdeclaration etc., whereas in the instant case no such proceeding has been initiated and that in the facts and circumstances, it cannot be said that the recovery was made on account of s....
X X X X Extracts X X X X
X X X X Extracts X X X X
....on of fraud, collusion, wilful suppression of facts or nonpayment of service tax with intent to evade payment of service tax under the Act or Rules thereunder, cannot be held that these ingredients are there, and that in the absence of these ingredients, in terms of Rule 9(1)(bb) of the CCR, 2004, Cenvat Credit cannot be denied to the assessee. The relevant portion is extracted hereunder for ready reference: - "5. Heard the parties and considered the submissions. After hearing both the sides, I find that in this case, short issue involved is that whether on the strength of supplementary invoices issued by the service provider of service tax paid under Section 73(4A) of Finance Act, 1994, the appellant is entitled to avail Cenvat cr....
X X X X Extracts X X X X
X X X X Extracts X X X X
....rty service was a highly contentious issue which was the subject matter before various judicial fora including High Courts and this Tribunal, across the country. In these circumstances the allegation of suppression or wilful misstatement cannot sustain. 19. As regards the Appeal by the revenue, relating to the dropping of proceeding for the recovery of interest by the Commissioner (Appeals), it is to be noted that as we have held that the Cenvat Credit to be eligible the question of demanding interest thereon would not arise. It has also been observed that during the impugned period, the Assessees had sufficient balance of credit, which was more than the amount of credit alleged to have been wrongly availed, would suggest, that they have....