Custom, Excise & Service Tax Tribunal
4. Whether Order Is To Be Circulated To ... vs Cce Vadodara on 16 November, 2011
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL
WEST ZONAL BENCH AT AHMEDABAD
(COURT- II(
Appeal No.E/1183, 1184/2010; E/CO-154/2010
Arising out of: OIA No.COMMR(A)/312/VDR-I/2009, dt.31.12.09,
OIA No.COMMR(A)/28/VDR-I/2010, dt.26.02.09
Passed by: Commissioner of Central Excise & Customs (Appeals), Vadodara
For approval and signature:
Mr. B.S.V. Murthy, Honble Member (Technical)
1. Whether Press Reporters may be allowed to see the No
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 of Seen
the order?
4. Whether order is to be circulated to the Departmental Yes
authorities?
Appellant:
CCE Vadodara
Respondent:
M/s Transatlantic Packaging Pvt.Ltd.; M/s Sun Pharma Industries Ltd.
Represented by:
None for M/s Transalantic Packaging Pvt.Ltd. Shri Kiran M. Sawle, Adv for M/s Sun Pharma Industries Ltd. Shri R.Srova, A.R. for the Revenue.
CORAM:
MR. B.S.V. MURTHY, HONBLE MEMBER (TECHNICAL) Date of Hearing/Decision:16.11.11 ORDER No. /WZB/AHD/2011, dt.16.11.11 Per: Mr.B.S.V. Murthy:
Since the issue involved in both these appeals is one and the same and the appeals filed by the Revenue are also on the same issue, these appeals are taken together for disposal and a common order is passed.
2. The respondents M/s Transatlantic Packaging Pvt.Ltd and M/s Sun Pharma Industries Ltd are engaged in manufacture of excisable goods and have filed refund claims for Rs.1,51,964/- (Rupees One Lakh, Fifty One Thousands, Nine Hundred and Sixty Four only) and of Rs.2,13,543/- (Rupees Two Lakhs, Thirteen Thousands, Five Hundred and Forty Three only) respectively for the unutilized Service Tax credit accumulated in the year 2007-2008 and 2008-2009 under Rule 5 of CENVAT Credit Rules, 2004 read with Section 11B of Central Excise Act, 1944. The original adjudicating authority rejected the refund claims and on appeals filed by the respondents, in the impugned order, the appeals were allowed. Revenue is in appeal against this decision.
3. Heard the ld.Authorised Representative for the Department and ld.Counsel for the respondent M/s Sun Pharma Industries Ltd. None appeared for M/s Transatlantic Packaging Pvt.Ltd. However, written submissions have been received from M/s Transatlantic, requesting that the issue may be decided on merit.
4. It was submitted on behalf of the Revenue that the inputs services should have been used in the manufacture of final product and the services in question viz. Customs House Agent service, Goods Transport Agency Service, Maintenance & Repair Service, Courier Service, Erection, Installation & Commissioning Service, Telecommunication service, Banking & other Financial service etc cannot be said to have been used in the manufacture. At best, it can be said that the same have been used in relation to manufacture of final product and according to the Notification No.5/2006-CE(NT), dt.14.3.06, the refund is admissible if the input services have been used in the manufacture of final product. They have relied upon the judgment of Hon'ble Supreme Court in the case of CCE Allahabad Vs Ginni Filaments Ltd 2005 (181) ELT 145 (SC). Further, it was also submitted that the Commissioner (Appeals) has relied upon the decision of the Tribunal in the case of Capiq Engineering Pvt.Ltd. Order No.A/2299-2300/WZB/AHD/08, dt.26.9.08 and this order has not been accepted and a Tax Appeal has been preferred before Hon'ble High Court of Gujarat and the decision of Hon'ble High Court is still awaited. Further, the Revenue has also relied upon the decision in the case of Kbase Tech Pvt.Ltd & others 2010-TIOL-564-CESTAT-BANG, to submit that the admissibility of CENVAT Credit itself is also required to be examined.
5. I have considered the submissions. First of all, in these cases, Show Cause Notices were issued proposing to reject the claims filed by the respondents and there was no proposal to deny CENVAT credit. Admissibility or otherwise of the CENVAT Credit was not the issue raised in the Show Cause Notice at all. Therefore, as held in the case of Capiq Engineering Pvt.Ltd (supra) by this Tribunal, if the admissibility of the credit is not taken up as an issue by issuance of of Show Cause Notice, the question of admissibility cannot be examined by the Tribunal. Therefore, the only issue to be examined is whether the credit was accumulated or whether it could have been utilized or not and whether the refund was admissible under notification No.5/2006. However, even admissibility of credit itself cannot be disputed now, in view of the Notification No.7/2010-CE(NT), dt.27.2.10, whereby the words used in have been replaced by the words used in or in relation to by amending Notification No.5/2006-CE(NT). This amendment was given retrospective effect by Finance Act, 2010. Therefore, by admission of the Revenue that the services have been used in relation to manufacture and in view of the amendment, the admissibility of CENVAT Credit cannot be disputed. As regards claim of accumulated credit, the decision of the Tribunal in the case of Capiq Engineering Pvt.Ltd (supra) squarely applies to the facts of this case and Commissioner (Appeals) has correctly relied upon the same. Further, the decision of the Tribunal in the case of Kbase Tech Pvt.Ltd. (supra) considered the admissibility of CENVAT Credit since that was the issue for consideration as per Para 4 of the order. In any case, in view of the retrospective effect of the amendment, the admissibility also has been accepted as already observed above. Therefore, the only admission by the Revenue is that the appeal has been filed against the decision of the Tribunal, in the case of Capiq Engineering Pvt.Ltd (supra). However, no stay has been granted.
6. I have considered the submissions. Retrospective amendment has nullified the submission that CENVAT Credit is not admissible. As regards accumulated credit, I find that the decision of this Tribunal in the case of Capiq Engineering Pvt.Ltd (supra) is applicable in this case. Hence, I find no merits in the appeals filed by the Revenue and the same are accordingly rejected. Cross objection also gets disposed of.
(Dictated & Pronounced in Court) (B.S.V. Murthy) Member (Technical) cbb 2