Custom, Excise & Service Tax Tribunal
Cce, Raipur vs M/S.Ambuja Cement Eastern Ltd on 14 June, 2011
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL,
WEST BLOCK NO.II, R.K. PURAM, NEW DELHI-110066.
SINGLE MEMBER BENCH
Court No.III
Excise Appeal No.E/2344/08-SM
(Arsing out of Order-in-Appeal No.102/RPR-I/2009 dated 12.9.2008 passed by the CCE (A), Raipur)
For approval and signature:
Honble Mr.M.Veeraiyan, Member (Technical)
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 should 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 Departmental authorities?
CCE, Raipur Appellants
Vs.
M/s.Ambuja Cement Eastern Ltd. Respondent
And Excise Appeal No.E/2125/08-SM M/s.Ambuja Cement Eastern Ltd. Appellants Vs. CCE, Raipur Respondent Present for the Appellant: Shri Anil Khanna,SDR and vice versa Present for the Respondent: Shri Hemant Bajaj, Adv. and vice versa Coram: Honble Mr. M.Veeraiyan, Member (Technical) Date of Hearing/decision: 14.06.2011 ORDER NO._______________ PER: M.VEERAIYAN 1.1 Appeal No.E/2125/08 is by M/s.Ambuja Cement Eastern Ltd. against the order-in-appeal No.102/RPR-I/2009 dated 12.9.2008.
1.2 Appeal No.E/2344/08 is by the department against the very same impugned order.
1.3 Both the appeals arise out of the same order, and therefore, they are being disposed of by this common order.
2. Heard both sides.
3.1 The appellant-assessee has filed appeal against the order of the Commissioner (Appeals) by which he upheld the decision of the original authority demanding duty of Rs.1,22,793/- after denying credit on the security services utilized in the colony of employees of the appellant-assessee and imposing penalty of Rs.1,22,793/-.
3.2 The department is in appeal against the order of the Commissioner (Appeals) insofar as the same related to allowing the credit of service tax in respect of service of telephone used in the guest house and the residences of the President and the Vice President of the appellant-assessee.
4.1 Learned Advocate for the appellant-assessee submits that the decision of the Tribunal in the case of Manikgarh Cement vs. CCE, Nagpur reported in 2008 (9) STR 554 and the decision of the Tribunal in the case of CCE, Visakhapatnam vs. Hindustan Zinc Ltd. reported in 2009 (16) STR 704 permitted the credit in respect of services used in connection with the security of colony. However, he fairly submits that the Honble Bombay High Court in the case of CCE, Nagpur vs. Manikgarh Cement vs. reported in 2010 (20) STR 456 (Bom.) held that security services provided in the colony of the employees of the assessee cannot be treated as input service. However, he submits that since the Tribunal in the two decisions including one which has been set aside by the Honble Bombay High Court have held that such credit is available, there cannot be any suppression of relevant facts as the view held by the appellant-assessee that they were eligible to credit is bonafide belief. Since the show cause notice dated 17.9.07 has been issued demanding duty for the period from January, 05 to June, 06, the same is fully time barred.
4.2 He also submits that in respect of cenvat credit on services relating to telephones installed in the guest house and in the houses of the President and Vice President of the appellant-assessee, the same is to be permitted in the light of the decision of the Tribunal in the case of CCE, Visakhapatnam vs. Andhra Pradesh Paper Mills Ltd. reported in 2010 (254) ELT 354 and in the case of CCE, Chennai-III vs. Greaves Cotton Ltd. reported in 2009 (239) ELT 137.
5. Learned SDR drawing my attention to the decision of the Honble Bombay High Court in the case of Manikgarh Cement submits that the appellant-assessee is not eligible for the credit in respect of input service in connection with security service used in the colony of the employees of the appellant-assessee.
6. I have carefully considered the submissions and perused the records. The issue of eligibility of cenvat credit on security service utilized for the colony of the employees stands decided by the Honble Bombay High Court in the case of Manikgarh Cement and the same is in favour of the department. However, the submission of the learned Advocate that the demand is time barred deserves to be accepted, as their view was in consonance with the earlier decisions of the Tribunal.
7. As regards the departmental appeal relating to setting aside the order of the Commissioner (Appeals) allowing the credit of Rs.6,940/- in relation to telephones installed in the guest house and houses of President and Vice President, the same does not deserve to be accepted in view of the decision of the Tribunal in the case Andhra Pradesh Paper Mills Ltd. and in the case of Greaves Cotton Ltd. cited supra.
8. In view of the above, appeal No.E/2125/08 of the assessee is allowed with consequential relief as per law. The appeal No.E/2344/08 of the department is rejected.
(Pronounced in the open court) (M.VEERAIYAN) MEMEBR (TECHNICAL) mk 1 4