It is seen from the records that the first appellate authority has rejected the appeal filed by the appellant on the question of limitation. It is undisputed that the appellant had received the order in original on 28.8.2010 and the appellant had a right to file an appeal within three months from the date of receipt of the order and he also gets further period of three months for seeking condonation of delay from the first appellate authority.
In view of the decision taken by this Tribunal in the case of Ramdev Food Products Pvt. Ltd vide Order Nos. A/745-746/WZB/AHD/2011, dated 22-3-2011 [2011 (23) S.T.R. 475 (Tri. – Ahmd.)], that port services rendered even without authorization of port, Service Tax credit will be available, respondents are eligible for the Service “tax credit and the decision of the Commissioner (Appeals) has to be upheld.
Since the appellant is not providing output services as categorized in Rule 2(p) of the Cenvat Credit Rules, 2004, debiting the said amount in the Cenvat account needs to be rectified by directing the appellant to debit or pay the entire amount invoked in both the appeals as service tax paid for receipt GTA services through PLA or by TR-6 challan.
In this case, the Service Tax demand has been confirmed on the ground that the service tax payable has not been debited in the CENVAT Credit account and it has not been reflected in the ST 3 return. In view of the fact that even in the cases of clandestine removal in Central Excise matters, while confirming the demand, the benefit of CENVAT Credit, subject to verification of records that proper documents are available and raw input/capital goods have been received, the benefit of CENVAT Credit is allowed.
Tribunal had considered the Larger Bench decision of the Tribunal in the case of Mahindra & Mahindra Limited 2005 ((190) ELT 301 before coming to the conclusion that when fabrication does not amount to manufacture, service tax is not leviable. Further, he also submits that the claim for exemption is on the ground that the contract was for construction of roads had been denied on the ground that contract was not produced.
It was contended by the appellants that they were not aware that they had to pay service tax. Though it was a fact that they have taken service tax registration, they never disclosed the nature of services rendered nor they furnished ST-3 returns, which was mandatory for a person providing taxable services. The question naturally arises that if they were not aware that they had to pay service tax, why should they take a service tax registration. We are of the opinion that non-furnishing of information or non-filing of returns resulted in non-payment of service tax and this action on the part of appellants tantamount to deliberate non-compliance with the provisions. In other words, this is only implying suppression of facts with an intent to evade payment of service tax. Therefore, the extended period, under Section 73(1) is rightly invoked by the Revenue.
Plea of the assessee that while making the payment wrong service tax code relating to erection, installation and commissioning, indicated merits to be considered and having regards to facts of the case and Board’s Circular No. 58/7/2003-ST, dated 20.05.03 issued from F.No.l59/2/2003-CX-4 and therefore adjustment of payment in the correct account code are allowed. If so, the Board’s circular dated 20.05.03 (referred supra) as a payment should be admissible. .
After carefully considering the submissions made by both the sides we find that it is an admitted fact by both the sides that the construction of road does not require payment of service tax. The Revenue’s only appeal is that construction of driveway cannot be equated with the construction of road in as much as such driveway was not for public utility purpose but the same was in connection with the petrol pump owned by the owner.
In case of an accident within the factory, the compensation has to be paid by the company in accordance with the law and this is obligatory. To fulfil this legal obligation, the assessee has taken insurance. Therefore, it can be said that in this case the insurance premium is definitely relatable to business activity and is to fulfil one of the legal obligations of providing compensation to worker in case of injury in the factory. Under these circumstances, it was held that Cenvat credit of service tax paid on insurance taken to pay workmen’s compensation to the insurance company is admissible. Accordingly, appeal filed by the revenue is rejected.
Revenue in their memo of appeal have sought to distinguish the Hon’ble Bombay High Court judgment in the case Indian Ship Owners Association vs. UOI, on the ground that in that decision the services were received outside the India, whereas in the present case, the services were received inside the India from the person having his office in India. We do not find any merit in the above distinction being made by the Revenue. Section 66-A having been inserted in the Finance Act with effect from 18.4.2006 clearly laying down that recipient of services in India from outside India shall be liable to pay tax, cannot be made applicable retrospectively. We find no merits in the Revenue’s contention. Accordingly, the appeal is rejected. Stay petition also get disposed off.
