Custom, Excise & Service Tax Tribunal
Commissioner Of Central Excise, ... vs M/S.Vesuvious India Ltd on 18 September, 2012
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE
TRIBUNAL, KOLKATA
EASTERN ZONAL BENCH: KOLKATA
Appeal No.Ex.Ap.173/12
(Arising out of Order-in-Appeal No.05/Kol-VI/2012 dated 18.01.2012 passed by the Commissioner(Appeal-II) of Central Excise, Kolkata.)
FOR APPROVAL AND SIGNATURE
HONBLE SHRI S.K. GAULE, MEMBER(TECHNICAL)
HONBLE DR. D.M. MISRA, MEMBER(JUDICIAL)
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
Authorative report or not?
3. Whether Their Lordship wishes to see the fair copy
of the Order?
4. Whether Order is to be circulated to the Departmental
Authorities?
Commissioner of Central Excise, Kolkata-VI
Applicant (s)/Appellant (s)
Vs.
M/s.Vesuvious India Ltd.
Respondent (s)
Appearance:
Shri S.Chakraborty, A.C.(A.R.) for the Revenue Shri S.P.Majumder, Advocate for the Respondent (s) CORAM:
Honble Shri S.K. Gaule, Member(Technical) Honble Dr. D.M. Misra, Member(Judicial) Date of Hearing:- 18.09.2012 Date of Pronouncement :- 18.09.2012 ORDER NO.
Per Shri S.K.Gaule.
1. Heard both sides.
2. Revenue filed this appeal against Order-in-Appeal No.05/Kol-VI/2012 dated 18.01.2012 whereby ld.Commissioner(Appeals) has set aside the lower adjudicating authoritys order.
3. Briefly stated the facts of the case are that respondents are engaged in the manufacture of refractory ceramic goods falling under chapter 69 and 38 of first schedule to CETA, 1985. They availed CENVAT Credit during January, 2006 to March, 2007 on Service Tax (as recipient) paid on GTA Service for transportation of finished goods from their factory and utilized the same for payment of duty on finished product. The department initiated proceedings against them for availing inadmissible credit. Accordingly show cause notice was issued for recovery of the same along with interest and there was also a proposal for imposition of penalty. The lower adjudicating authority confirmed the proposal. Aggrieved by the same, the respondents filed appeal before ld.Commissioner(Appeals). Ld.Commissioner(Appeals) while relying upon decision of Honble Karnataka High Court in the case of Commissioner of Central Excise & Service Tax, LTU, Bangalore vs. M/s.ABB Ltd. 2011 (23) STR 97 (Kar) set aside the lower adjudicating authoritys order and allowed the appeal of the respondent. Hence revenue is in appeal.
4. The contention of the Revenue is that after the final products are cleared from the place of removal there will be no scope of subsequent service to be treated as inputs. Therefore CENVAT Credit is not admissible. In support of their contention they placed reliance on this Tribunals decision in the case of M/s.Ultratech Cements v. CCE, Bhavanagar 2007 (6) S.T.R. 364 (Tri.) and in the case of M/s.Gujrat Ambuja Cement Ltd. v. CCE, Ludhiana 2007 (6) STR 249 (Tri.Del). The contention is that in case of decision of Honble Karnataka High Court in the case of M/s.ABB Ltd., the department has filed appeal before the Honble Supreme Court.
5.1 The ld.Advocate appearing for the respondent brought to our notice that the period involved in this case is January, 2006 to March, 2007 and the issue involved in this case is regarding CENVAT Credit availed on GTA Service up to the place of removal. The contention is that the issue is already covered by the decision of the Honble High Court of Karnataka in the case of Commissioner of Central Excise & Service Tax, LTU, Bangalore vs. M/s.ABB Ltd. 2011 (23) STR 97 (Kar).
5.2 Ld.Advocate for the respondent also contended that even though the SLP was filed against the decision of the Honble High Court of Karnataka in the case of ABB Ltd. (supra), the same had also not been admitted by the Apex Court and there was no stay against the same.
6. We have considered the submissions of both sides and perused the record. We find that the issue regarding CENVAT Credit availed on outward freight for the period till 01.04.2008 has been settled by the Honble High Court of Karnataka in the case of ABB Ltd. in favour of the assessee. We also find that there is no stay against the same. The Honble High Court in para 34 has held as under:
34. For the reasons, which we have assigned in our order, the final order of the Tribunal is legal and valid. We further make it clear that this interpretation is valid till 1-4-2008. In that view of the matter, but for the aforesaid modification, we do not see any merit in these appeals. The substantial questions of law raised are answered in favour of the assesses and against the revenue.
7. In these circumstances, we do not find any merit in the appeal filed by the Revenue and is accordingly dismissed.
(Operative part of the order was pronounced in the open court.) Sd/ sd/ (D.M.MISRA) (S.K. GAULE) MEMBER(JUDICIAL) MEMBER(TECHNICAL) sm 4 Appeal No.Ex.ap.173/12