Custom, Excise & Service Tax Tribunal
Morarjee Textiles Ltd vs Commissioner Of Central Excise, Nagpur on 20 September, 2016
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL WEST ZONAL BENCH AT MUMBAI COURT No. APPEAL No. E/85406/13-Mum (Arising out of Order-in-Appeal No. PVR/212/NGP/2012 dated 10.11.2012 passed by Commissioner of Central Excise (Appeals), Nagpur) For approval and signature: Honble Mr. M.V. Ravindran, 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 : No CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
3. Whether Their Lordships wish to see the fair copy : Seen of the Order?
4. Whether Order is to be circulated to the Departmental : Yes authorities?
====================================================== Morarjee Textiles Ltd. Appellant Vs. Commissioner of Central Excise, Nagpur Respondent Appearance: Shri Mehul Jivani, C.A., for appellant Shri S. Hasija, Superintendent (AR), for respondent CORAM: Honble Mr. M.V. Ravindran, Member (Judicial) Date of Hearing: 20.9.2016 Date of Decision: 20.9.2016 ORDER NO
This appeal is directed against order-in-appeal No. PVR/212/NGP/2012 dated 10.11.2012.
2. Heard both sides and perused the records.
3. The issue is regarding availment of cenvat credit of the service tax paid on the commission to the commission agent situated abroad. It is on record that the appellant had paid commission to the agent situated abroad for sale of the final products. On such amounts paid, they were liable to discharge service tax liability under reverse charge mechanism which they did so and took the credit. The Revenue is disputing this credit availed by the appellant.
4. The learned Chartered Accountant brings to my notice the decision of this Bench in their own case for the earlier period, wherein such credit was disputed by the authorities. He submits that the Bench has held in favour of the assessee and produces a copy of the final order No. A/44/15/SMB dated 2.1.2015.
5. The learned departmental representative, on the other hand, would submit that the decision of the Tribunal in the case of ITC Ltd. vs. CCE, Guntur reported in 2011 (23) STR 41, will be applicable as in that case, the Tribunal has held that a person who is discharging the tax liability as the deemed output service provider, cannot avail the cenvat credit as tax paid by him.
6. On careful consideration of the submissions made by both sides, I find that the decision of the Tribunal in the appellants own case is squarely on the subject. The final order dated 2.1.2015 clearly indicates that the appellant is eligible to avail the cenvat credit of such commission paid to foreign commission agent. The appellant is eligible to utilize the cenvat credit for discharge of such service tax liability. Respectfully following the same, I held that the impugned order is unsustainable.
7. As regards the case law cited by the learned departmental representative, I find that the facts are totally different as in that case, ITC Ltd. was not providing any output service or they were not manufacturing any dutiable final product while in the case in hand, it is an admitted fact that the appellant is manufacturing dutiable product.
8. Respectfully following the view taken by the Bench in appellants own case for the earlier period, in my considered view, the appeal has got merits and appeal needs acceptance. The appeal is allowed and the impugned order is set aside.
(Dictated in Court) (M.V. Ravindran) Member (Judicial) tvu 1 3 E/85406/13