Custom, Excise & Service Tax Tribunal
Jyoti Structures Ltd vs Cce Nasik on 21 May, 2012
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL, WEST ZONAL BENCH AT MUMBAI
COURT NO. II
APPLICATION NO. ST/S/2066/11
IN APPEAL NO. ST/685/11 Mum
Arising out of Order-in-Original No. 22/ST/2011 dated 26.09.2011 passed by the Commissioner of Central Excise & Customs, Nasik.
For approval and signature:
Honble Shri Ashok Jindal, Member (Judicial)
Honble Shri P.R. Chandrasekharan, Member (Technical)
1. Whether Press Reporters may be allowed to see : No
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 : Seen
of the Order?
4. Whether Order is to be circulated to the Departmental : Yes
authorities?
Jyoti Structures Ltd.
:
Appellant
Versus
CCE Nasik
Respondent
Appearance Shri M.H. Patil, Advocate for appellant Shri V.K. Agarwal, Addl. Commissioner (A.R.) For Respondent CORAM:
Shri Ashok Jindal, Member (Judicial) Shri P.R. Chandrasekharan, Member (Technical) Date of Hearing : 21.05.2012 Date of Decision : 21.05.2012 ORDER NO.
Per Ashok Jindal Vide this appeal the appellants have challenged the impugned order for denial of utilization of CENVAT credit for payment of excise duty on the final product and output service provided by them.
2. Brief facts of the case are that the appellants are manufacturer of transmission towers and also providing services of erection, commissioning & installation, management, maintenance or repair, testing, inspection of these towers etc. For their activity of manufacturing and providing the above services, the appellants availed CENVAT credit on inputs, capital goods and input services. The department was of the view that the appellants are not maintaining a separate account in respect of input/input services utilized in the manufacture of final product and used in providing the output services therefore, they are not entitled for input service credit availed by them. A show-cause notice was issued to the appellants demanding service tax on credit earned on input/input services and CENVAT credit taken on inputs/input services utilized by them for providing output services. Demands were confirmed along with interest and penalties. Therefore, the appellants are in appeal before us.
3. After hearing both sides, we are of the view that the appeal itself can be disposed of. Therefore, after granting waiver of the requirement of pre-deposit, we take up the appeal as well stay application for final disposal.
4. As discussed above, the allegation against the appellants are that as they are not maintaining a separate account for input/input services availed by them for providing output services therefore, they are not entitled for input services credit.
5. Rule 3 of the CENVAT Credit Rules, 2004, deals with availment of CENVAT credit and sub-Rule (4) provides that the credit may be utilized for payment of service tax on any output services provided that while paying duty of excise or service tax, as the case may be, the CENVAT credit shall be utilized only to the extent such credit is available on the last day of the month or quarter, as the case may be, for payment of duty or tax relating to that month or the quarter, as the case may be.
6. It is not disputed that the appellant has availed credit which is available to them and there is no provision for segregation of input/CENVAT credit for payment of excisable goods and for payment of service tax. The said issue came up before this Tribunal in the case of Forbes Marshall Pvt. Ltd. vs. Commissioner of Central Excise, Pune - 2010 (258) ELT 571 (Tri.) wherein this Tribunal has observed that there is no provision in CENVAT Credit Rules, 2004, for segregation of input services utilized in manufacture or to provide output service. Following the said decision, we maintain here also that there is no requirement for one to one co-relation of CENVAT credit availed on input services towards payment of output services. In view of these observations, we set aside the impugned order and allow the appeal.
7. The appeal as well as stay application are disposed of in the above manner.
(Dictated in open Court) (P.R. Chandrasekharan) Member (Technical) (Ashok Jindal) Member (Judicial) nsk 4