Custom, Excise & Service Tax Tribunal
Racold Thermo Ltd vs Cce Pune I on 29 June, 2017
IN THE CUSTOMS EXCISE & SERVICE TAX APPELLATE TRIBUNAL
WEST ZONAL BENCH AT MUMBAI
Appeal No.
ST/793/12
(Arising out Order-in- Appeal No. P-I/MMD/167/2012 dated 31.08.2012 passed by the Commissioner of Central Excise (A), Pune I)
For approval and signature:
Honble Shri Ramesh Nair, Member (Judicial)
Honble Shri Raju, Member (Technical)
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?
Racold Thermo Ltd.
Appellant
Vs.
CCE Pune I
Respondent
Appearance:
Shri M.P. Joshi, Advocate for the appellant Shri M.P. Damle, AC (AR) for the respondent CORAM:
Honble Shri Ramesh Nair, Member (Judicial) Honble Shri Raju, Member (Technical) Date of hearing : 02.06.2017 Date of decision : 29.06.2017 O R D E R No: ..
Per: Raju The appellants Racold Thermo Ltd. are in appeal against confirmation of demand of reversal of cenvat credit availed on commercial or industrial construction service or works contract service as input service. The appellants are engaged in providing immovable property on rent and are paying service tax thereon. The credit was denied suo motu by the Asstt. Commissioner vide letter dated 19.04.2010 relying on the circular no. 98/01/2008-ST dated 04.01.2008. the appellants challenged the same before the Commissioner (Appeals) who dismissed the appeal as premature stating that the letter of Asst. Commissioner against which appeal has been filed is a clarification in respect of appellants letter dated 08.02.2000. The Commissioner (Appeals) further gone to affirm that the said letter dated 09.04.2010 does not demand reversal of cenvat credit or interest thereon. The appellants further agitated the matter before the Tribunal and the Tribunal vide order remanded the matter to the Commissioner (Appeals) to decide the issue on merits. In remand proceedings the Commissioner (Appeals) upheld the direction issued by the Asstt. Commissioner vide letter dated 19.04.2010 as just and fair and the appeal filed by the appellants was rejected. Aggrieved by the said order, the appellants are before the Tribunal.
2. Ld. Counsel for the appellants argued that the appellants had bonafide belief that they are entitled to service tax credit on the said services used for construction of immovable property which they have given on rent. The appellants availed the credit on 25.12.2007. The appellants sought specific clarification from revenue vide letter dated 26.03.2008 stating that they will be availing the service tax credit for bills raised by the contractor which they are using for providing for renting of immovable property service. Subsequently, on 08.2.2010, they again referred to their earlier letter dated 26.03.2008 seeking clarification on the issue. They clearly stated that though they have taken the credit they have not utilised the same till such time. The order dated 09.04.2010 which initiated this entire process was issued in response to the clarification sought vide letter dated 08.02.2010.
3. Ld. AR relies on the impugned order. He also relied on the clarification in circular no. 98/01/2008-ST dated 04.01.2008 and judgments in the case of Shree Laminators Ltd. 2016 (340) ELT 401 (Tri-Hyd.) and Tower Vision India Pvt. Ltd. 2016 (42) STR 249 (Tri-LB).
4. We have gone through the rival submission. We find that the letter dated 09.04.2010 is merely a request to the appellants to reverse the cenvat credit availed by them. No show-cause notice has been issued to the appellants. In these circumstances, it is not an enforceable order as such and it is only a clarification issued or an opinion of the revenue. It is up to the appellants to follow the same or not. Since the said letter has been issued without issue of show-cause notice, the same cannot be upheld as a demand of reversal.
5. In view of the above, the impugned order is set aside and the letter dated 19.04.2010 is held to be just a clarification/ opinion of the Asst. Commissioner.
(Pronounced in Court on ..............................) (Ramesh Nair) Member (Judicial) (Raju) Member (Technical) //SR
- 4 -
ST/793/12