If the appellant have paid the service tax they are entitled to take credit of the same. In that view, it cannot be said that by suppressing the fact that the appellants are going to get extra benefit on account suppression. In view of these observations and following the decision in the case of Amman Steel Corpn. (supra), I am of the view that penalty under Section 78 of the Finance Act is not sustainable.
We have not found prima facie case for the appellant insofar as the demand of service tax on life membership fees is concerned. Though it has been claimed that such fees are refundable as per the by-laws of the appellant, the claim is yet to be substantiated. We have not been shown a copy of the by-laws.
It is well settled that the assessee is entitled to take CENVAT credit of service tax paid by them on the services availed by them in the course of business of manufacturing as held by the Hon’ble High Court of Bombay in the case of CCE v. Ultratech Cement Ltd. [2010] 29 STT 244 (Bom.).
So far as the cross-objection of the respondent assessee is concerned, we do not find merit on valuation issue when discussion made by the ld. Commissioner (Appeals) in para 6.2 is read. The respondent assessee claims cum-tax benefit. This point does not need further consideration at this stage for no evidence led to show that the gross value was inclusive of service tax. So far as the taxability is concerned that was not before ld. Commissioner (Appeals). Such issue not been raised nor decided no pleading at this stage is entertainable in second appeal. Cross-objection is dismissed accordingly.
As per Notification No. 5/06, the assesses are required to file a refund claim within the time prescribed under Section 11B of the Central Excise Act. As per Section 11B of the Act, the assessees are required to file a refund claim within one year from the relevant date and the limitation of one year shall not apply where duty has been paid under protest.
If any of the part of the advance attributable to taxable service and that did not form part of returns filed subsequently that amount shall be brought to tax without escapement. Law does not permit postponement of liability because of specific provision under section 67(3) of the Finance Act.
We are unable to find from the orders of the authorities below as to the manner how the appellant has failed to get benefit of Notification No. 32/2004-ST, dated 3-12-2004.
The appellant brings out that since the liability is determinable after 18-2-2006, it has discharged tax liability with interest in respect of both the appeals although it sought registration after the impugned period. It was given to understand that the period covered in both the appeals are prior to the delivery of the judgment of Apex Court in the aforesaid citation.
Now the issue to be examined is whether shifting of goods within the factory premises amounts to production or processing of goods for, or on behalf of, the client. Obviously the word production cannot cover shifting of goods.
Certainly the procedure prescribed by rule 4(7) of Cenvat Credit Rules needs interpretation in favour of Revenue. But to the extent service tax is paid in respect of an invoice and in a contingency of retention of part of payment for any dispute on the invoice or any other legal purpose, disallowance of cenvat credit to the extent of tax paid shall cause hardship to the taxpayer.
