2025 (10) TMI 816

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.... by the Commissioner (Appeals), Chandigarh-II whereby, a) vide OIA dated 04.02.2013, the learned Commissioner (Appeals) has confirmed the demand along with interest and penalty under Section 78, however, dropped the penalty under Section 76 of the Act; b) vide the OIA dated 28.11.2013, the learned Commissioner (Appeals) has adjusted the amount of refund of Rs.1,79,213/- against arrears arising out of the OIA dated 04.02.2013. We are taking up both the appeals together because the fate of second appeal i.e. ST/51525/2014 is dependent upon the outcome of first appeal i.e. ST/57163/2013. To decide the case, we are taking up the facts of appeal ST/57163/2013 as the main appeal. 2. Briefly stated facts of the present case....

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.... by the said OIO, the appellants filed appeal before the Commissioner (Appeals) who vide the OIA dated 04.02.2013, has dropped the penalty imposed under Section 76 in case of first SCN but confirmed the demand along with interest and penalty under Section 78. Hence, the appellants have preferred the appeal ST/57163/2013 before us. 3. Heard both the parties and perused the material on record. 4. The learned Counsel for the appellants submits that the impugned orders are not sustainable in law as the same have been passed without properly appreciating the facts and the law, and binding judicial precedents. 4.1 He further submits that the appellants have all along taken a plea that they had not logged into the website of the service p....

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....der this category. 4.4 He further submits that in the second SCN, the demand is for the period from March 2009 till March 2010 whereas the SCN has been issued on 19.10.2010, therefore, the demand before 19.10.2009 is beyond limitation as the time limit for issuing the SCN was one year during that point of time. 4.5 He further submits that even otherwise, the situation is revenue neutral as the tax, if payable, was available as Cenvat Credit to the appellants. For this he relies on the following decisions: • Jet Airways (I) Ltd vs. CST, Mumbai - 2016 (44) STR 465 (Tri. Mumbai) upheld by the Supreme Court in 2017 (7) GSTL J35 (SC) • Asmitha Microfin Ltd vs. CCE & ST, Hyderabad-III - 2020 (33) GSTL 250 (Tri. Hyd....

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.... availing the service of online information and data-base access and retrieval service. 7. Further, we find that in this case, there is no allegation in the SCN that the appellants had accessed the websites of the service providers. It appears to us that the demand has been confirmed merely on the basis of assumption, whereas the fact of the matter is that the appellants had made the payment through the conventional banking channels and the same has been not disputed by any of the authorities below. This fact itself proves that the appellants had not logged into the websites of the service providers. 8. Further, we find that the entire situation is revenue neutral in the present case as held in the cases relied upon by the appellants,....