Custom, Excise & Service Tax Tribunal
M/S Jindal Stainless Steel Ltd vs Cce, Rohtak on 9 October, 2017
CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL
SCO 147-148, SECTOR 17-C, CHANDIGARH 160 017
COURT NO. I
Appeal No. E/2289/2009
(Arising out of OIO No. 22/Commr/CS/09/CE dt. 12.05.2009 passed by the Commissioner of Central Excise, Rohtak.)
Date of hearing/decision: 09.10.2017
For approval and signature:
Honble Mr. Ashok Jindal, Member (Judicial)
Honble Mr. Devender Singh, Member (Technical)
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M/s Jindal Stainless Steel Ltd.
Appellant(s) VS CCE, Rohtak.
:
Respondent(s) ======================================== Appearance:
Sh. B.L. Narshiman, Advocate for the Appellant(s) Sh. G.M. Sharma, AR for the Respondent(s) CORAM:
Honble Mr. Ashok Jindal, Member (Judicial)
Honble Mr. Devender Singh, Member (Technical)
FINAL ORDER NO. 61975/2017
Per : Ashok Jindal
The appellant is in appeal against the impugned order wherein the demand on account of reversal of Cenvat Credit availed by them was confirmed and penalty was also imposed on the appellant.
2. The brief facts of the case are that the appellants is manufacture of stainless steel ingots, blooms, plates, slabs, coils and strips. The appellant has also registered in respect of GTA services received from the transporters. During the period December, 2005 to April, 2006, the appellant availed Cenvat Credit of Service Tax paid on the services received from the service provider located outside India and having no office in India under reverse charge mechanism. The Revenue is of the view that in terms of Rule 9 (1)(b) of the Cenvat Credit Rules, 2004, the appellant has availed Cenvat Credit on the strength of TR-6 Challans whereas Service Tax has been paid much after the period when they received the services from service provider located outside India under reverse charge mechanism. Therefore, in terms of Rule 9(1)(b) of Cenvat Credit Rules, 2004, they are not entitle to avail Cenvat Credit. In these set of facts, the show cause notice was issued to the appellant to deny the Cenvat Credit, consequently to demand duty alongwith interest and imposed the penalty on the appellant. The matter was adjudicated, the Cenvat Credit was denied. Consequently, the duty was demanded alongwith interest and higher penalty was imposed.
3. The Ld. Counsel for the appellants submits that the provisions of Rule 9(1)(b) of CCR, 2004 are not applicable to the facts of this case as the said rule is applicable to inputs/capital goods whereas the issue involved in the matter is the availment of Cenvat Credit on services received from the outside India. Therefore, the said rule is not applicable to the facts of this case. Therefore, he prayed that the impugned order is to be set aside.
4. On the other hand, Ld. AR reiterated the findings in the impugned order.
5. Heard the parties and considered the submissions.
6. Ongoing through the facts of the case, we find that the issue emerges before us is that during the impugned period whether Rule 9(1)(b) of Cenvat Credit Rules, 2004 was applicable to the facts of the case or not? For better appreciation, Rule 9(1)(b) is extracted here below:-
Rule 9. Documents and accounts.-
(1) The CENVAT credit shall be taken by the manufacturer or the provider of output service or input service distributor, as the case may be, on the basis of any of the following documents, namely :-
(a) an invoice issued by-
(i) a manufacturer for clearance of -
(I) inputs or capital goods from his factory or depot or from the premises of the consignment agent of
the said manufacturer or from any other premises from where the goods are sold by or on behalfof the said manufacturer;
(II) inputs or capital goods as such;
(ii) an importer;
(iii) an importer from his depot or from the premises of the consignment agent of the said importer if the said depot or the premises, as the case may be, is registered in terms of the provisions of Central Excise Rules, 2002;
(iv) a first stage dealer or a second stage dealer, as the case may be, in terms of the provisions of Central Excise Rules, 2002; or
(b) a supplementary invoice, issued by a manufacturer or importer of inputs or capital goods in terms of the provisions of Central Excise Rules, 2002 from his factory or depot or from the premises of the consignment agent of the said manufacturer or importer or from any other premises from where the goods are sold by, or on behalf of, the said manufacturer or importer, in case additional amount of excise duties or additional duty leviable under section 3 of the Customs Tariff Act, has been paid, except where the additional amount of duty became recoverable from the manufacturer or importer of inputs or capital goods on account of any non-levy or short-levy by reason of fraud, collusion or any wilful misstatement or suppression of facts or contravention of any provisions of the Excise Act, or of the Customs Act, 1962 (52 of 1962) or the rules made there under with intent to evade payment of duty. Ongoing through the provisions of Rule 9(1)(b), we find that the said rule is invokable only for Cenvat Credit availed on the strength of supplementary invoices issued by manufacturer or importer of excisable goods for inputs or capital goods. The said rule is not applicable to the services received, admittedly, the issue before us is that the appellant has availed Cenvat Credit of Service Tax paid for the services received from a service provider located outside India under reverse charge mechanism in terms of Section 66 of the Finance Act, 1994. Therefore, we hold that the provisions of Rule 9(1)(b) of CCR, 2004 are not invokable to the facts of this case.
7. In view of the above observations, the issue is answered in the favour of the appellant, therefore, we hold that the appellant has correctly availed the Cenvat Credit, no proceedings are required to be initiated against the appellant.
8. In these terms, the impugned order is set aside and the appeal is allowed with consequential relief if any.
(Dictated and pronounced in the open court) Devender Singh Member (Technical) Ashok Jindal Member (Judicial) NS 4 Appeal No. E/2289/2009-CHD