Custom, Excise & Service Tax Tribunal
Itc Limited vs Commissioner Of Central Excise, ... on 18 December, 2017
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL SOUTH ZONAL BENCH BANGALORE Appeal(s) Involved: E/21406/2017-SM [Arising out of Order-in-Appeal No. 356-357/2017 dated 15/06/2017 passed by Commissioner of Central Excise , BANGALORE-IV ] ITC Limited Meenakunte Village Jala Hobli, BANGALORE - 562157 KARNATAKA Appellant(s) Versus Commissioner of Central Excise, Service Tax And Customs Bangalore-iv Office of the Commissioner of Central Excise & Service Tax Bangalore-IV Commissionerate, 59, HMT Bhavan, Bellary Road BANGALORE - 560032 KARNATAKA Respondent(s)
Appearance:
MR. N. Anand, Advocate K. S. Ravi Shankar, Advocate No.152, Race Course Road Bangalore 560 001.
For the Appellant Dr. J. Harish, AR For the Respondent Date of Hearing: 18/12/2017 Date of Decision: 18/12/2017 CORAM:
HON'BLE SHRI S.S GARG, JUDICIAL MEMBER Final Order No. 23176 / 2017 Per : S.S GARG The present appeal is directed against the impugned order dated 15.6.2017 passed by the Commissioner (A) whereby the Commissioner (A) disposed of two appeal filed by the appellant.
2. Briefly the facts of the present case are that the appellant is engaged in the manufacture of cigarette cut-tobacco, etc., falling under Chapter 24 of Central Excise Tariff Act, 1985 and are availing CENVAT Credit under CENVAT Credit Rules, 2004 on various input services. During the course of scrutiny of the returns of the assessee for the period from September 2011 to December 2011 and January 2012 to December 2012, it was noticed that the assessee have availed CENVAT credit on various input services which do not fall in the definition of input service as per Rule 2(1) of CENVAT Credit Rules, 2004 (CCR). In the present appeal, the input services of Commercial and Industrial Construction Service on which CENVAT credit was denied by both the authorities and aggrieved by the said denial, the appellant has filed the present appeal.
3. Heard both the parties and perused the records.
4. The only issue involved in the present appeal is whether the services in relation to setting up of marketing office of the appellant-factory received prior to 1.4.2011 but the credit distributed and availed on the basis of Input Service Distributor (ISD) invoice during November 2011 is entitled for CENVAT Credit as an input service under Rule 2(1) of CCR. In the impugned order, there is no dispute about the entitlement to the credit on the services in question for the period prior to 1.4.2011 but the credit is denied only on the ground that post 1.4.2011 the amended definition of input service in Rule 2(1) excludes setting up services from the scope of availment of input services. 5. The learned counsel for the appellant submitted that the impugned order is not sustainable in law because the same is passed contrary to the factual position on record. He further submitted that the input service of Commercial and Industrial Construction Service was availed prior to 1.4.2011 and he has also produced the invoice dated 15.12.2010 which shows that the said service was procured prior to 1.4.2011 but the credit was distributed by the ISD in November 2011. The learned counsel further submitted that the CBEC vide Circular No.943/4/2011- TRU dated 29.4.2011 has clarified as under:
Sl. No. Issue Clarification
12.
Is the credit available on services received before 1.4.2011 on which credit is not allowed now? E.g. rent-a-cab service?
The credit on such service shall be available if its provision had been completed before 1.4.2011.
Further, he submitted that it is an admitted fact that even in the impugned order the Commissioner (A) has accepted that the said services were procured prior to 1.4.2011 but in spite of that he has denied the CENVAT credit. The learned counsel in support of his submissions relied upon the following decisions:
* Kamal Rub Plast Industries Pvt. Ltd. vs. CC: 2016 ( 41) STR 855 * Prayas Engineering Ltd. vs. CCE: 2015 (37) STR 508 * Bharat Fritz Werner Ltd. vs. CCE: 2011 (22) STR 429 * Carrier Air-conditioning and Refrigeration Ltd. vs. CCE: 2016 (41) STR 824 * ITC Ltd. vs. CCE & vice versa vide Final Order No.20475-
20476/2017 dated 31.3.2017
6. After considering the submissions of both the parties and perusal of the material on records and the decisions cited supra, I am of the considered view that the documents produced by the appellant on record clearly establishes that the construction service was obtained prior to 1.4.2011 and it is only distributed by the ISD in November 2011. This issue has been settled in favour of the assessee by various decisions cited supra and therefore, by following the ratios of the said decisions, I hold that the credit cannot be denied and therefore, I set aside the impugned order by allowing the appeal of the appellant with consequential relief, if any.
(Order dictated in Open Court on 18/12/2017) S.S GARG JUDICIAL MEMBER rv...
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