Custom, Excise & Service Tax Tribunal
Cce, Jaipur-I vs M/S Mangalam Cement Limited on 21 October, 2016
CUSTOMS EXCISE & SERVICE TAX APPELLATE TRIBUNAL West Block No.2, R. K. Puram, New Delhi. Date of hearing: 17.10.2016 Pronouncement on: 21.10.2016 Excise Appeal No. 48 of 2010 (Arising out of order-in-original No. 31-32/2009(CE)-Commissioner dated 31.08.2009 passed by the Commissioner (Appeals), Central Excise, Delhi-II). CCE, Jaipur-I Appellant Vs. M/s Mangalam Cement Limited Respondent
Appearance:
Sh. Yogesh Agarwal, AR for the Revenue. Sh. Mayank Garg, Advocate for the Respondent- assessee. Coram:
Honble Justice (Dr.) Satish Chandra, President Honble Shri B. Ravichandran, Member (Technical) Final Order No. 54406/ 2016 Per: B. Ravichandran:
The appeal by Revenue is against order dated 27.11.2009 of Commissioner of Central Excise, Jaipur-I. The respondent are engaged in the manufacture of cement clinker liable to Central Excise duty. They were also availing cenvat credit of duty paid on inputs, capital goods and input services in terms of Cenvat Credit Rules, 2004. Two show cause notices were issued covering the period October, 2007 to September, 2008 alleging that the respondent had received the services relating to mining of limestone in their mines which did not appear to be covered by the definition of input services in terms of Rule 2(l) of the Rules. The case was adjudicated. The original authority vide the impugned order held that the input service, the credit on which is sought to be denied is mining and excavation service carried out at their captive mines. He held that these services are clearly covered under the definition. These services namely mining and excavation, is used in relation to procurement of limestone from their captive mines which is used directly in the manufacture of final product i.e. cement. The original authority held the respondent is eligible for the credit and dropped the demands.
2. In the appeal before us, the Revenue contended that the respondent are not entitled for availing the credit of service tax as the services received by them are correctly classifiable under supply of tangible goods service under Section 65(105)(zzzzj) of Finance Act, 1994. As such, no service tax is required to be paid till 15.05.2008 on the said services and accordingly no credit can be availed by the respondent on such services.
3. We have heard both the sides and perused the appeal records.
4. Admittedly, the show cause notice alleged that the credit availed by the respondent on mining service and excavation service which are related to extraction of limestone from their mines are not eligible for input service credit as the said service is not covered by the provisions of Rule 2(l) of the Cenvat Credit Rules, 2004. The original authority found the respondent eligible for the credit as the services are in connection with procurement of raw material and accordingly dropped the demands. Now, the Revenue is aggrieved by this order on the ground that the actual classification of the service should be under supply of tangible goods introduced only w.e.f. 15.05.2008. We find the present plea taken by the Revenue is entirely on different ground not agitated before the lower authority. Further, it is well settled position of law that the credit availed by an assessee cannot be denied or varied on the ground that the classification of service should have been made in a different category by the provider of service. Variation in the classification or consequent rate of payment of service tax is not possible at the end of the recipient of service. There is nothing on record to state that the category of service or payment of service tax has been varied during the material time by the provider of service. In the absence of such situation, we find that the present appeal which is beyond the scope of the proceedings concluded against the respondent has no legal basis and merit. Accordingly, the appeal by the revenue is dismissed.
(Pronounced on 21.10.2016).
(Justice (Dr.) Satish Chandra) President (B. Ravichandran) Member (Technical) Pant