ULTRATECH CEMENT LTD. Vs. COMMISSIONER OF C. EX.

JUDGEMENT

(1.) BOTH the stay petitions are being disposed of by a common order as they arise out of the same impugned order -in -appeal and issue involved is the same. The dispute relates to availment of Service Tax credit amounting to Rs. 94,859/ - and Rs. 58,507/ - in respect of Service Tax paid on the consultancy services received by the appellants from foreign consultants, in respect of feasibility status for setting up of a cement plant at Oman and Iran. The Service Tax stands paid by the appellants on the said services inasmuch as the foreign consultant was not having any office in India. Revenues' objection to the said availment of credit is that services in question were not used in or in relation to business conducted by the appellant in India. On the other hand, it is the appellant's contention that since they have paid the service tax on the said services, which are to be used for setting up of factory, the same would be eligible for modvat credit.

(2.) AFTER hearing both sides, I find that Revenue's stand that such services were not used in relation to business in India, infact would lead to a situation where the appellants could not have paid Service tax inasmuch as the services were obtained in a foreign country for setting up of a unit in the foreign country itself. As such, if the revenues' stand that no services were received in India in relation to the business of appellant are accepted, the same would lead to a situation where no service tax was required to be paid by the appellants. In any case, I find at this prima facie stage, that demand is barred by limitation. The appellants, having reflected the quantum of credit availed by them in the returns filed with the department, cannot be held to be guilty of any mala fide intention or mis -statement. As such, the appellants have earned their stay on this ground itself I accordingly. I allow both the stay petitions.