Custom, Excise & Service Tax Tribunal
Cce, Meerut-Ii vs M/S.Hindustan Coco Cola Beverages (P) ... on 3 January, 2011
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL,
WEST BLOCK NO.II, R.K. PURAM, NEW DELHI-110066.
SINGLE MEMBER BENCH
Excise Appeal No.E/1442/2009-SM
Date of Hearing: 03.01.2011
Date of Decision: 03.01.2011
(Arising out of Order-in-Appeal No.123-CE/MRT-II dated 25.2.2009 passed by the CCE(A), Meerut-II)
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, Meerut-II Appellant
Vs.
M/s.Hindustan Coco Cola Beverages (P) Ltd. Respondent
Present for the Appellant: Shri K.P.Singh, SDR
Present for the Respondent: Shri Sanjeev Dahiya, AR
Coram: Honble Mr.M.Veeraiyan, Member (Technical)
ORDER NO._______________
PER: M.VEERAIYAN
This is an appeal by the department against the order of the Commissioner (Appeals) No. No.123-CE/MRT-II dated 25.2.2009.
2. Heard both sides.
3. The respondents availed cenvat credit of service tax paid during the period from April, 2005 to March, 2006 based on the TR-6 challans under which the respondents themselves paid service tax as deemed service provider. The Original authority has held that prior to 16.6.2005, TR-6 challans are not prescribed documents for taking cenvat credit. The Commissioner (Appeals) set aside the order of the original authority.
4. Learned SDR reiterates the grounds of appeal and adds that the rule has been amended only from 16.6.2005 permitting TR-6 challan as a document based on which the cenvat credit can be taken, the benefit of amendment cannot be given for earlier period.
5. Learned Authorised Representative submits that respondents, in the present case, happen to be both deemed service provider and service recipient. The service tax has been paid under TR-6 challan and the credit taken is permissible in the light of the decision of the Tribunal in the case of Gaurav Krishna Ispat (I) Ltd. vs. CCE, Raipur reported in 2009 (13) STR 629 which has be followed by the Tribunal in several cases for example the case of Hira Steels Ltd. Vs. CCE, Raipur reported in 2009-TIOL-2153-CESTAT-DEL.
6. I have carefully considered the submissions and perused the records. The respondents as deemed service provider paid service tax under TR-6 challan and the same is not in dispute. The decisions relied upon by the Authorised Representative fully supports the order of the Commissioner (Appeals). Generally, the person who pays the service tax is different from the person who takes the cenvat credit and therefore credit is being taken based on such third party documents. In the present, case, TR-6 challan has been used for paying service tax by the respondents themselves. There is no dispute about payment of service tax by the respondents and that as recipient they are entitled to the credit. There can be no difficulty for the department in verifying the correctness of the credit taken as deemed service provider and the person who has taken the credit are one and the same person.
7. Therefore, I do not find any merit in the appeal of the department and the same is rejected.
(Pronounced in the open court) (M.VEERAIYAN) MEMBER (TECHNICAL) mk 6 2