Custom, Excise & Service Tax Tribunal
Cce & St, Ludhiana vs M/S. Swati Industries on 5 November, 2013
IN THE CUSTOMS, EXCISE AND SERVICE TAX
APPELLATE TRIBUNAL, NEW DELHI
COURT NO. III
Excise Appeal No. 3649/2012-EX[SM]
[Arising out of Order-In-Appeal No. 251/CE/APPL/CHD-II/LDH/2012 dated 22.08.2012 passed by CCE, Ludhiana]
For approval and signature:
Honble Ms. Archana Wadhwa, 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
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Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
No
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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
CCE & ST, Ludhiana Appellant
Vs.
M/s. Swati Industries Respondent
Appearance:
Shri Pramod Kumar, JCDR for the Appellant Shri Sudhir Malhotra, Advocate for the Respondent Coram: Honble Ms. Archana Wadhwa, Judicial Member Date of Hearing: 05.11.2013 FO ORDER NO. 58286/2013_ Per Ms. Archana Wadhwa:
Being aggrieved with the order passed by Commissioner (Appeals), revenue has filed the present appeal. I have heard Shri Pramod Kumar, learned JCDR appearing for the revenue and Shri Sudhir Malhotra, learned Advocate appearing for the respondent.
2. The facts of the case in brief are that during the course of audit of the appellants, registered with the department for the manufacture of Scaffolding Equipments and Forgings etc., it was alleged by the department that they had wrongly taken Cenvat credit amounting to Rs. 9,75,66/- during the period April 2004 to December 2008 on account of service tax paid on Overseas commission (BAS), Customs House Agents and Terminal Handling Services as the said services did not fall under the category of input services in terms of Rule 2(1) of the Cenvat credit Rules, 2004. The adjudicating authority vide impugned order held that as the place of removal of goods in the instant case is the factory gate and the overseas commission agents rendered the services of promotion of sale of goods after exportation thereof from India and similarly the services of Customs House Agents and Shipping Lines have been availed by the appellants in relation of export of final products and these have no concern with the place of removal of goods from the factory and thus ordered recovery of Cenvat credit amounting to Rs. 9,75,663/- along with interest and also imposed equivalent penalty under Rule 15 of the Cenvat credit Rules, 2004 read with Section 11AC of the Central Excise Act, 1944.
3. Being aggrieved with the order of the original adjudicating authority, the respondent filed an appeal before the Commissioner (Appeals). The said authority observed that the interpretation:-
I note that interpretation of Input Service has been subjected to much litigation and from the judgments of various courts/tribunals, it is now settled that the definition of input service is not to be confined to manufacture alone but has to be interpreted on basis of requirement of business.
4. He took note of the Tribunal decision in the case of CCE, Ludhiana Vs. Ambika Overseas 2012 (25) STR (348 P & H) High Court has held that the Service tax paid on overseas commission is available to the assessee as Cenvat credit. Similarly, in case of availability of Cenvat credit paid on the Customs House Agents and Shipping Lines, allowed the same by following the Tribunal in the case of M/s. Vidyut Metallies Pvt. Ltd. Vs. CCE, Mumbai [2012-TIOL-02-Cestat-Mum] as also the Tribunal decision in the case of M/s. Steel Strips Wheels Ltd. Vs. CCE, Chandigarh-II [2012 TIOL-942-CESTAT-DEL]. The said order of Commissioner (Appeals) stand appealed against by the Revenue. After going through the grounds of appeal raised by the Revenue, I find that the said issues are no more res-integra and stand settled by various decision of the Tribunal as also of the Honble High Court, which stands rightly relied upon by Commissioner (Appeals).
5. As such, I find no infirmity in the order of Commissioner (Appeals). The appeal is accordingly rejected.
(Pronounce in the open Court) (Archana Wadhwa) Member (Judicial) Jyoti* ??
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