Custom, Excise & Service Tax Tribunal
C.C.E., Jaipur Ii vs M/S Rajasthan Spinning & Weaving on 13 April, 2010
CUSTOMS EXCISE & SERVICE TAX APPELLATE TRIBUNAL, West Block No.2, R.K.Puram, New Delhi COURT-III Date of hearing/decision:13.4.2010 Central Excise Appeal No.3092 of 2007-SM Arising out of the order in appeal No.343-344(HKS)CE/JPR-II/2007 dated 4.6.2007 passed by the Commissioner (Appeals II), Customs, Central Excise, Jaipur. Honble Shri S.K. Gaule, Technical Member 1 Whether Press Reporter 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 CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not? 3 Whether their Lordships wish to see the fair copy of the Order? Seen 4 Whether Order is to be circulated to the Departmental authorities? Yes C.C.E., Jaipur II Appellant Vs. M/s Rajasthan Spinning & Weaving Respondents
Mills Ltd.
Appearance:
Shri S. Gautam, Authorized Departmental Representative (SDR) for the Revenue and Shri Atul Gupta, Advocate for the respondent Coram: Honble Shri S.K. Gaule, Technical Member Oral Order No.____________________ Per S.K. Gaule:
Heard both sides.
2. Revenue is in appeal against the Commissioner (Appeals) order No. 343-344(HKS)CE/JPR-II/2007 dated 4.6.2007 whereby Commissioner (Appeals) while relying upon the Tribunals decision in the case of C.C.E., Chandigarh vs. Nahar Industrial Enterprises Ltd. reported in 2007 (7) STR 26 (Tr-Del.) rejected the Departments appeal filed against the order in original dated 30.3.2007 vide which the demand of service tax of Rs.739668/- was confirmed along with interest and penalty of Rs.1000/- under Section 77 of the Finance Act, 1994 was imposed.
3. The respondents are engaged in the manufacture of man-made yarn of synthetic and artificial staple fibre falling under Chapter 55 of the CETA, 1985. They were also registered under Section 69 of the Finance Act, 1994 as Goods Transport Operator. They have utilised the cenvat credit earned on various inputs, capital goods and service tax paid on input service. The Department sought to disallow the credit so availed and utilised on the ground that the same cannot be utilised for payment of GTA services. The lower adjudicating authority accordingly confirmed the proposal in the show cause notice. The Commissioner (Appeals) set aside the impugned order in original. Hence the appeal.
4. The contention of the appellant is that the ld. Commissioner (Appeals) has set aside the lower adjudicating authoritys order while relying on the Tribunals decision in the case of C.C.E., Chandigarh vs. Nahar Industrial Enterprises Ltd (supra) and they are still having time to file appeal against the aforesaid decision and therefore, to protect the interest of revenue, they have filed appeal before the Honble Tribunal. In support of their contention they placed reliance on definitions of capital goods, input and private taxable service etc. They also place reliance on Honble Tribunal decision in the case of C.C.E., Raigad vs. Santogen Exports reported in 2009 (120) ELT 530 (Tri-Mumbai).
5. I find that there is no dispute that the respondent has earned cenvat credit on inputs, capital goods and input service. There is no allegation of the Department that the said cenvat credit included credit of service tax paid on GTA service. Commissioner (Appeals) has set aside the lower adjudicating authoritys order while relying upon the decision of the Tribunal in the case of C.C.E., Chandigarh vs. Nahar Industrial Enterprises Ltd. The appellant failed to submit any evidence that the said decision has either been stayed or reversed. The Tribunals decision cited by the appellant in the case of Commissioner of Central Excise Raigad vs. Santogen (supra) relates to cenvat credit of service tax paid on GTA service and utilised for output GTA services and is not relevant to the instant case. Commissioner (Appeals) order does not suffer from any infirmity. Therefore, I do not have any reason to interfere with the same. The Order- in Appeal is upheld and the appeal is dismissed.
(S.K. Gaule) Technical Member scd/ 3