Custom, Excise & Service Tax Tribunal
M/S Hema Engineering Industries Ltd vs Cce, Delhi Iii on 5 July, 2013
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL West Block No. 2, R.K. Puram, New Delhi 110 066. Principal Bench, New Delhi COURT NO. III DATE OF HEARING : 05/07/2013. DATE OF DECISION : 05/07/2013. Excise Stay Application No. 1990 of 2012 in Appeal No. 1530 of 2012 (SM) [Arising out of the Order-in-Appeal No. 102/BK/GGN/2012 dated 23/03/2012 passed by The Commissioner (Appeals), Central Excise, Delhi III, Gurgaon.] For Approval and signature : Honble Ms. Archana Wadhwa, Member (Judicial) 1. Whether Press Reporters may be allowed to see : the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982? 2. Whether it would be released under Rule 27 of : the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not? 3. Whether their Lordships wish to see the fair : copy of the order? 4. Whether order is to be circulated to the : Department Authorities? M/s Hema Engineering Industries Ltd. Appellant Versus CCE, Delhi III Respondent
Appearance Ms. Asmita A. Nayak, Advocate for the appellant.
Shri S.K. Panda, Authorized Representative (AR) for the Respondent.
CORAM : Honble Ms. Archana Wadhwa, Member (Judicial) Final Order No. 56897/2013 Dated : 05/07/2013 Per. Archana Wadhwa :-
After dispensing with the duty of Rs. 1,13,676/- and penalty of identical amount, I proceed to decide the appeal itself in as much as the issue is covered by precedent decision of the Tribunal.
2. The said amount stands confirmed against the applicant, who is a manufacturer and exporter of motor vehicle parts, oven and its parts and bath radiators, by denying them the Cenvat credit of service tax paid on various input services like courier services, cargo handling services, CHA services and clearing and forwarding services. The Revenues objection is that the said services cannot be held to be covered by the definition of input services in as much as the same stand availed by the appellant, after the goods are cleared from their factory gate. The lower authorities have also referred to a Notification No. 41/2007-ST dated 06/10/2007, which exempts the specified services received by an exporter and used for export of the goods from the whole of service tax leviable thereon, subject to the conditions enumerated therein. The present notification allows exemption by way of refund of service tax paid on the specified services use for export of the said goods. One of the condition for availing the benefit of the said notification is that no Cenvat credit of service tax stands taken under the Cenvat Credit Rules, 2004.
3. After hearing both the sides, duly represented by Ms. Asmita A. Nayak, Advocate, the learned Counsel for the appellant and Shri S.K. Panda, AR for the respondent, I find that the legal issue stand decided by the Tribunal in catena of judgments. In the case of Commissioner vs. Adani Pharmachem Pvt. Ltd. reported in 2008 (232) E.L.T. 804 (Tribunal Ahmedabad), the benefit of Cenvat credit of service tax paid on the CHA services as also the other services availed at the port stands extended to the assessee by observing that in case of export, place of removal gets extended to the load, port. The said decision stand followed by the Tribunal in number of cases and some references can be made to Tribunals decision in the case of Meghachem Industries vs. CCE, Ahmedabad reported in 2011 (23) S.T.R. 472 (Tri. Ahmd.), Oriental Containers Ltd. vs. CCE, Thane reported in 2012 (28) S.T.R. 397 (Tri. Mumbai). As such, I am of the view that the services availed for the purpose of export of the goods, till the port area or at the port area are admissible cenvatable input services.
4. As regards Notification No. 41/2007-ST, I have seen the said notification, which provide exemption from service tax paid various taxable services, by way of refund of service tax paid on the services so availed by the exporter. There are conditions attached to the Notification and the refund of service tax is available to the exporter subject to the fulfillment of certain conditions. One of the condition is that no Cenvat credit of service tax paid on the specified services stands taken by the exporter. As such, it is clear that that if the exporter avails the benefit of Cenvat credit, he would not be entitled to refund of service tax in terms of the said notification. This makes it clear that the notification is in the alternative i.e. the exporter can either choose to avail the credit or to seek refund of the same. The notification cannot be adopted as a support to deny the Cenvat credit claimed by the exporter on the ground that the exporter should have followed the system of refund in terms of the said notification. It is the option of the exporter either to claim refund of service tax, without availing the benefit of the Cenvat credit or to avail the Cenvat credit in terms of Cenvat Credit Rules in which case refund of the service tax would not be available to them.
5. In view of the foregoing discussions, I find that the denial of Cenvat credit is neither just nor proper. The same is accordingly set aside and appeal is allowed with consequential relief to the appellant. Stay petition as also appeal get disposed of in above manner.
(Dictated and pronounced in open court) (Archana Wadhwa) Member (Judicial) PK ??
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