Custom, Excise & Service Tax Tribunal
M/S Reitzel India Pvt Ltd vs The Commissioner Of Central Excise on 20 June, 2016
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL
SOUTH ZONAL BENCH
BANGALORE
Appeal(s) Involved:
ST/25554/2013-DB
[Arising out of Order-in-Appeal No. 387/2012-CE dated 20/11/2012 passed by Commissioner of Central Excise (Appeals), Bangalore]
For approval and signature:
HON'BLE SHRI S.S GARG, JUDICIAL MEMBER
1
Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?
No
2
Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
Yes
3
Whether Their Lordships wish to see the fair copy of the Order?
Seen
4
Whether Order is to be circulated to the Departmental authorities?
Yes
M/s Reitzel India Pvt Ltd.,
Plot No. 98-88, KIADB Industrial Area, Anchepalya village,
Kunigal
Tumkur Distt
Karnataka 572130
Appellant(s)
The Commissioner of Central Excise,
Bangalore.
Respondent(s)
Appearance:
Mr. M.S. Nagaraja, Adv For the Appellant Mr. N. Jagadish, A.R. For the Respondent Date of Hearing: 15/06/2016 Date of Decision:
CORAM:
HON'BLE SHRI S.S GARG, JUDICIAL MEMBER Final Order No.20438/2016 Per : S.S GARG The present appeal is directed against the decision of the Commissioner (Appeals) dated 20.11.2012 vide which the learned Commissioner (Appeals) has denied CENVAT credit in regard to few services under Rule 5 of the CENVAT Credit Rules.
2. Briefly the facts of the present case are that the appellant is a 100% EOU engaged in the manufacture of export of processed gherkins which are packed in drums, jars and tins and exported to USA, Europe and Russia. The appellant incurs various expenses either directly or indirectly for the manufacture of final products or activities relating to business. For the quarter January to March 2010 appellant had filed a refund claim of Rs 14,28,764/- representing unutilized CENVAT credit filed under Rule 5 of the CENVAT Credit Rules 2004. Out of the refund claim of Rs 14,04,701/- refund of Rs 9,31,287/- was rejected by the Assistant Commissioner vide order-in-original dated 26.07.2011 against which the appellant filed appeal before Commissioner (Appeals) who rejected the refund of Rs 2,59,886/- vide order dated 20.11.2012. Against the rejection of this refund, the appellant has filed the present appeal.
3. I have heard both sides. The learned counsel for the appellant submitted that the impugned order dated 20.11.2012 is not sustainable in law as the same has been passed without considering the submissions of the appellant as well as the decisions rendered by the Tribunal and also by the Honble High Court. He further submitted that the services namely consultancy services, maintenance and repair services, labour contract services and clearing services falls in the definition of input services as defined in Rule 2(l) of the CENVAT Credit Rules 2004 before its amendment with effect from 1.04.2011. The learned counsel further submitted that the bills submitted with regard to each service clearly show that the same is directly or indirectly is in relation to manufacture of the goods and has a nexus with the business of the appellant. The learned counsel in support of his arguments relied upon the following judgments and circulars:
i. Vishal Natural Food Products Bangalore Final Order No. 382/2011 dated 10/06/2011 of (Tri-Bangalore) ii. ANZ International Vs CC Bangalore [2008(224)ELT 573 (Tri-Bang) iii. Circular Letter DOF No. 334/1/2010-TRU, dated 26.2.2010 iv. Vishal Natural Food Products Vs CC Bangalore [2011(266)ELT 369(Tri-Bang)] v. Toyota Kirloskar Motor (P) Ltd Vs CCE (LTU), Bangalore [2011(24)STR 645 (Kar)] vi. ITC Ltd Vs CCE Hyderabad [2010(17)STR 146 (Tri-Bang)] vii. CCE Vs Stanzen Toyotetsu India Pvt Ltd [2011(23)STR 444 (Kar-HC)] viii. CCE Nasik Vs Cable Corporation of India Ltd [2008(12)STR 598 (Tri-Mum)] ix. Coca Cola India Pvt Ltd Vs CCE [2009(15)STR 657(Bom)] x. Circular No 120/01/2010-ST dated 19.1.2010 F.No 354/268/2009-TRU xi. Pharmalab Process Equipments Pvt Ltd VS CCH Ahmd [2009(242)ELT 467 (Tri-Ahmd) xii. CST Delhi Vs Convergys India Pvt Ltd [2009(16)STR 198 (Tri-Del)] & [2010(20)STR 166 (P&H)] He also submitted that in the appellants own case, learned Commissioner (Appeals) in order-in-appeal No. 204/2010 dated 09.12.2010 had dismissed the appeal filed by Assistant Commissioner Bangalore against order-in-original No 209/R/ST/DC/2009 dated 12.08.2009. Further in the appellants own case, this Tribunal vide order No. 21122/2015 allowed the refund of CENVAT credit in relation to certain input services namely calibration charges, consultation charges, clearing charges, courier charges, internal audit fee, IT consultancy, labour charges, office maintenance charges, professional consultancy, repair and maintenances, security charges, staff training and transportation charges by relying upon the various case laws cited by the appellant as stated supra. Out of the various judgments, it is pertinent to mention the decision of division bench of Honble Bombay High Court in the case of Coca Cola India Pvt Ltd Vs CCE cited supra wherein the Honble High Court has held that activities in relation to business cover all activities that are related to the functioning of business and the expression relating to further widens the scope of the expression activities relating to business. In the absence of any qualifying words like main activities or essential activities all and any activity relating to business would fall within this ambit.
4. After going through various judgments cited supra, I am of the considered view that the disputed services herein fall in the definition of input services and therefore the appellant is entitled to refund of CENVAT credit under Rule 5 of the CENVAT Credit Rules 2004 and accordingly, I allow the appeal of the appellant with consequential relief if any.
(Order pronounced in open court on )
S.S GARG
JUDICIAL MEMBER
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