Custom, Excise & Service Tax Tribunal
M/S. Bhusan Power & Steel Ltd vs Commissioner Of Central Excise, ... on 22 August, 2016
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE
TRIBUNAL, KOLKATA
EASTERN ZONAL BENCH: KOLKATA
Appeal Nos.E/75886/2014, 75776/2015 & 75783/15
(Arising out of Order-in-Appeal No.123-124/KOL-IV/2014 dated 12.03.2014 passed by the Commissioner (Appeals), Central Excise, Kolkata-III)
FOR APPROVAL AND SIGNATURE
Honble Shri H.K.Thakur, 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
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?
M/s. Bhusan Power & Steel Ltd.
Applicant (s)/Appellant (s)
Vs.
Commissioner of Central Excise, Kolkata-IV
Respondent (s)
Appearance:
Sri B.N.Chattopadhyay, Consultant for the Appellant (s) Sri J.Bose, AC(AR) for the Respondent (s) CORAM:
Honble Shri H.K.Thakur, Member (Technical) Date of Hearing:-22.08.2016 Date of Pronouncement :- 22.08.20016 ORDER NO.FO/A/75880-882/16 Per Shri H.K.Thakur
1. These appeals have been filed by the appellant against Order-in-Appeal No. 123-124/KOL-IV/2014 dated 12.03.2014 passed by the Commissioner (Appeals), Central Excise, Kolkata-III as First Appellate Authority.
2. Sri B.N.Chattopadhyay (Consultant) appearing on behalf of the appellant submitted that appellant has taken cenvat credit with respect to telephone services, logistic services, import freight services, import auxiliary services, insurance services, business support services, port services, inspection services scheme services, export freight services etc. availed by the headquarters of the appellant. That department has taken the objection that cenvat credit taking documents were in the name of headquarter of the appellant, therefore, denied cenvat credit to the appellant. It is the case of the Ld. Consultant that all the services for which cenvat credit has been taken were with respect to Hooghly unit. That appellant is having other units at different places. Ld. Consultant further argued that distribution of credit without taking registration as Input Service Distributer (ISD) is no bar in taking cenvat credit. He relied upon the following case laws in support of his arguments:
i) Doshion Ltd. vs.- Commr.C.E., Ahmedabad[2013 (288) E.L.T. 291(Tri.-Ahmd.)].
ii) Commr. Of C.E. vs.-Dashion Ltd. [2016(41) S.T.R. 884(Guj.)].
iii) Commr. Of Customs & C.Ex., Vapi vs.-DNH Spinners [2009(244) E.L.T. 65(Tri.-Ahmd.)].
iv) Modern Petrofils vs.-Commr. Of C.Ex., Vadodara [2010(20) S.T.R. 627(Tri.-Ahmd.)].
v) Valco Industries Ltd.-vs.-Commr. Of C.Ex., Chandigarh [2012(286) E.L.T. 54 (Tri.-Del).
vi) Demosha Chemicals Pvt. Ltd. vs.- Commr. Of C.Ex. & S.T., Daman [2014(34) S.T.R. 758 (Tri.-Ahmd.)].
vii) Bloom Dekor Ltd. vs.- Commr. Of C.Ex, Ahmedabad [2012(28) S.T.R. 182 (Tri.-Ahmd.)].
viii) M/s. Inox Air Products Ltd. vs.-Commr. Of C.Ex, Raigad [2015-TIOL-08-CESTAT-MUM].
3. Sri J.Bose, AC(AR) appearing on behalf of the Revenue argued that appellant could not establish that the services availed, for which service tax is paid by the headquarter of the appellant, were utilized in their Hooghly unit. Ld.AR made the bench go through paragraph-6 of the OIA dated 12.03.2014 to emphasis that no evidence could be produced by the appellant before the lower authorities regarding proof of receipt of the services in appellants Hooghly unit. He relied upon the following case laws in support of his argument that cenvat credit has been correctly rejected by the First Appellate Authority:-
a) Market Creators Ltd.-vs.- Commr.of C.Ex & S.T., Vadodara [2014(36) S.T.R. 386 (Tri.-Ahmd.)].
b) Commr. Of C.Ex, Ahmedabad-II vs.- Cadila Healthcare Ltd.[2013 (30) S.T.R. 3 (Guj.)].
c) Mangalore Refinery & Petrochemicals-vs.-C.C.E., Mangalore [2013 (30) S.T.R. 475 (Tri.-Bang.)].
4. Heard both sides and perused the case records.
5. It is observed from the case laws relied upon by the appellant that in all these case laws it was not disputed that services for which cenvat credit was taken were not utilized in the appellants premises. In those circumstances, it is a settled proposition that the requirement of getting registered as ISD only a procedural requirement and cannot be made the basis for denying cenvat credit. However, in the present proceedings the very basis, whether services for which credit is taken are used in Hooghly unit, is the subject matter of dispute. Ld. Consultant has countered to the submissions made by the Ld. AR and argued that reconciliation of services being used in the appellants Hooghly unit can be even done now. It was his case that it should be possible to demonstrate before the Adjudicating Authority that service credit taken is only with respect to services utilized in appellants Hooghly unit. In the interest of justice the matter is required to be remanded back to the Adjudicating Authority as it is only reconciliation of the facts whether services for which cenvat credit has been taken were actually used in the Hooghly unit of the appellant or not. This verification can only be done by the Adjudicating Authority during remand proceedings. It is made clear that all the issues have been kept open for the Adjudicating Authority to deliberate upon. Needless to say that an opportunity of personal hearing should be extended to the appellant for explaining their case regarding utilization of services in their Hooghly unit.
6. In view of the above observations appeals filed by the appellant are allowed by way of remand to the Adjudicating Authority.
(Operative Portion of the order was pronounced in the open court.) S/d.
(H.K.Thakur) MEMBER IAL) MEMBER(TECHNICAL)
SS
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Appeal No.E/75886, 75776 & 75783/15