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2014 (11) TMI 926 - GUJARAT HIGH COURTCenvat Credit - input services - Non commencement of production / manufacturing activity - Whether the CESTAT was right in considering the services namely Technical Testing and Analysis Service, Technical Testing and Certification Service, and Intellectual Property Rights Services, availed by the assessee, as eligible services for availing input service credit as defined under Rule 2(l) of the CCR, 2004 - Held that:- Tribunal has merely followed its earlier decision in the case of M/s. Cadila Healthcare Pvt. Limited [2009 (8) TMI 172 - CESTAT, AHMEDABAD] and has allowed the appeal. - It is an accepted position that the above decision of the Tribunal in the case of M/s. Cadila Healthcare Pvt. Limited came to challenged before this court [2013 (1) TMI 304 - GUJARAT HIGH COURT] and the same had been answered in favour of the assessee and against the Revenue From the findings recorded by the Commissioner (Appeals) it appears that though the nature of services involved are more or less similar, the facts of the present case are different from that of M/s. Cadila Healthcare Pvt. Limited inasmuch as the services availed by the assessee are in respect of products which are not put to manufacture even after availment of the services in question. The assessee has not commenced manufacture of the final product in view of the fact that if the product is manufactured during the patent period there would be violation of Intellectual Property Rights which would have huge financial implications. Hence, the assessee is waiting till the time the product becomes generic before commencing manufacture of the final product. The Commissioner (Appeals) has, therefore, held that as and when the assessee is able to co-relate the use of the above services as input service used in its final product it would be eligible for credit of such taxes. The Tribunal, in the impugned order has without delving into the facts of the present case and noticing the distinguishing features, has blindly followed its earlier decision in the case of M/s. Cadila Health Care Pvt. Limited. However, the Tribunal being the final fact finding authority having not examined the facts of the case in proper perspective, in the absence of proper facts being placed before it, it is not possible for this court to answer the question formulated hereinabove. Under the circumstances, the matter is required to be remitted back to the Tribunal - Matter remanded back - Decided in favour of Revenue.
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