Custom, Excise & Service Tax Tribunal
Cce, Visakhapatnam vs M/S. Andhra Pradesh Paper Mills Ltd on 6 January, 2011
CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL
SOUTH ZONAL BENCH AT BANGALORE
Bench SMB
Court II
Date of Hearing: 06/01/2011
Date of decision:06/01/2011
Appeal No.ST/934/09
(Arising out of Order-in-Appeal No.24/2009(V-II)ST dt. 31/7/2009 passed by CCE, ST &C(Appeals), Visakhapatnam)
For approval and signature:
Honble Mr. M.V.Ravindran, 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?
No
2.
Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
No
3.
Whether their Lordship wish to see the fair copy of the Order?
Seen
4.
Whether Order is to be circulated to the Departmental authorities?
Yes
CCE, Visakhapatnam
..Appellant(s)
Vs.
M/s. Andhra Pradesh Paper Mills Ltd.
Respondent(s)
Appearance Mr. K.S. Chandrasekhar, JDR for the Revenue.
Ms. S. Thenmozhi, Advocate for the respondent.
Coram:
Honble Mr. M.V.Ravindran, Member(Judicial) FINAL ORDER No._______________________2011 Per M.V.Ravindran This appeal is filed by the Revenue against the Order-in-Appeal No.24/2009(V-II)ST dt. 31/7/2009 .
2. The relevant facts that arise for consideration are that the respondent herein are manufactures of paper and paper board and are discharging appropriate duty on the same. The respondents are also availing the benefit of Cenvat Credit of the Central Excise duty paid on the inputs and service tax paid on the input services. During the period April, 2005 to September, 2006, the respondents availed Cenvat Credit of the service tax paid by the service tax provider on mobile phones which were used by the staff. Coming to a conclusion that the said credit was not eligible to the respondents, show-cause notice dt. 21/8/2008 was issued, invoking extended period of time for demand and reversal of the credit availed by the respondent. Respondents contested the show-cause notice before the Adjudicating Authority. The Adjudicating Authority did not agree with the contentions raised by the respondents and coming to conclusion that the respondents have availed irregular credit, confirmed the demands along with interest and also imposed penalties. Aggrieved by such an order, the respondents preferred an appeal before the Commissioner(Appeals) who vide impugned order set aside the Order-in-Original on merits as well as on time bar. Hence the Revenue is in appeal.
3. Ld. JDR would submit that the credit availed by the respondents on the service tax paid on the mobile services is incorrect as the said mobiles were registered in the name of employees and on verification it was found that the bills were paid by the employees. It is also his submission that if the employees have paid for the services, the services were received by the employees and not by the assessee. It is also his submission that the respondents did not indicate the amount of credit availed against which mobile number of the employees and hence they suppressed the information from the Revenue.
4. Ld. Counsel would submit that there is no dispute that they have been filing the monthly returns with the authorities indicating the availment of credit of the service tax paid by the cell phone companies. She would submit that that the show-cause notice is clearly time barred. It is also her submission that on merits, the amounts which have been paid by the employees were reimbursed by the company. She would also rely upon the judgment of the Honble High Court of Bombay in the case of CCE, Nagpur Vs. Ultratech Cement [2010(20) STR 589 (Bom.)] on an identical issue.
5. I have considered the submissions made by both sides and perused the records.
6. The issue involved in this case is regarding the eligibility of the respondent to avail Cenvat Credit of the service tax paid on the cell phone services which were registered in the name of employees. There is no dispute that the cell phones were registered in the name of employees. The only contention of the Revenue is that the amount of bill of the cell phones used by the employees is paid by the employees themselves. At the same time, the contention of the ld. Counsel that the amount has been reimbursed has not been rebutted in anywhere in the records. Ld. Commissioner(Appeals) has already disposed of the appeal in favour of the respondents on the limitation. The findings of the ld. Commissioner(Appeals) on this issue is under:-
7. . In para 6 of the impugned order it was also alleged that the appellants had not mentioned the details of the cell phones on which they had taken input service credit in their monthly returns submitted to the department and thereby had suppressed that facts. From the case records, it is observed that no evidence was available on record to substantiate the above claims of the department. Further the appellants are not required under law to furnish the details of cell / mobile phones on which they had availed the input service credit as alleged by the department, which by no stretch of imagination can be averred as suppression of facts which necessitates invoking proviso to Section 11A of the Central Excise Act. It is for the department to decipher and analyse the details of credit availed by the appellants in the monthly returns furnished to the department. Hence, the demand is clearly time barred. In any case input service credit is available to fixed telephone and mobile telephones given to the employees of a unit in the light of decision of Honble Tribunal in the case of M/s. Keltech Energies Limited Vs. CCE, Mangalore [2008(10) STR 280 (Tri. Bang.)]. Accordingly, I pass the following order.
7. It can be seen from the above reproduced portion that the Revenue was not able to show to the ld. Commissioner(Appeals) or even before me evidence that the respondents have suppressed the factual details, in the absence of any contrary evidence, in my considered view, the impugned order is correct, legal and does not suffer from any infirmity. The appeal filed by the Revenue is rejected.
(Pronounced and dictated in open court) (M.V.RAVINDRAN) MEMBER (JUDICIAL) Nr 5