Custom, Excise & Service Tax Tribunal
Manikgarh Cement vs Cce Nagpur on 2 December, 2010
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL, WEST ZONAL BENCH AT MUMBAI
COURT NO. II
APPEAL NO. E/1235/09 Mum
(Arising out of Order-in-Appeal No. SR/176/NGP/2009 dated 20.08.2009 passed by the Commissioner of Central Excise & Customs (Appeals), Nagpur).
For approval and signature:
Honble Shri Ashok Jindal, Member (Judicial)
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 : Yes
of the Order?
4. Whether Order is to be circulated to the Departmental : Yes
authorities?
Manikgarh Cement
:
Appellant
Versus
CCE Nagpur
Respondent
Appearance Shri J.C. Patel, Advocate for Appellant Shri V.K. Singh, SDR for Respondents CORAM:
Shri. Ashok Jindal, Member (Judicial) Date of Hearing : 02.12.10 Date of Decision : 02.12.10 ORDER NO.
Per : Ashok Jindal The appellant is in appeal against the impugned order wherein input service credit availed by them is denied by the lower authorities holding that the service which was availed by them is not a taxable service.
2. 2. The facts of the case are that the appellant being a manufacturer of cement availed input service credit under service category of Certification of Pollution Level. The said availment of input service credit was denied to them on the ground that the impugned service was not taxable during the impugned period. Hence the appellants are not entitled to take the credit. Aggrieved from the said order, the appellant is in appeal before this Tribunal.
3. Shri J.C. Patel the learned Advocate for the appellant submits that the appellant has availed the services of Certification of Pollution Level and maintenance of sewage treatment plant and paid service tax for that service and availed input service credit against the invoices raised by their service provider for this service and as per Rule 3 of Cenvat Credit Rules, 2004 the appellant is entitled to take credit of the services availed by them against service tax paid invoices. He further submits that in the case of CCE Chennai vs. Caborandum Universal Ltd. - 2009 (16) STR 181 (Tri.- Chennai) the Tribunal has held that when the eligibility of such credit has not been questioned at the end of the service provider, input service credit taken by the assessee cannot be denied. He also relied on Koch-Glitsch India Ltd. vs. CCE & Cus., Vadodara-I 2009 (13) STR 636 (Tri. Ahm.) wherein this Tribunal has held that it is not in dispute that the service has not provided, when the service is received and service is paid, the assessee is entitled to take the credit of service tax paid.
4. On the other hand the learned DR submits that as per Rule 3 of CENVAT Credit Rules, 2004 the assessee is entitled for taking credit of the services on which service tax is leviable under Section 66 of the Finance Act and in this case the service has been held not liable to be taxed hence there is no infirmity in the impugned order and the same has to be upheld.
5. Heard and considered.
6. On careful examination of the submission made by both the sides, I find that in this case the appellant has paid service tax on availment of its services against the service tax paid invoices. It is also admitted fact that whether the impugned service is taxable or not is to be decided at the end of service provider and not at the end of service receiver. In that event, if any service availed by the appellant against service tax paid invoices, the appellant is entitled to take input service credit on the same as held by this Tribunal in the case of Caborandum Universal Ltd (supra). Hence I do not find any merit in the impugned order and the same is set aside. The appeal is allowed with consequential relief.
(Dictated in Court) (Ashok Jindal) Member (Judicial) nsk 3