TMI Blog2019 (8) TMI 1680X X X X Extracts X X X X X X X X Extracts X X X X ..... r although they had used the manufacturing unit of M/s Suparash Electro Product Co., these clearances to be independently taken into consideration for deciding the SSI exemption benefit - thus, the clearances of M/s Suparash Electro Product Co. cannot be added to the clearances of the appellant for determining the turnover for exemption under the Notification No. 8/2003-CE. CENVAT Credit - GTA Services - reverse charge mechanism - HELD THAT:- Since, the appellant was not having any evidence to show whether the service provider has availed the Cenvat credit on any of the inputs, the service tax has been confirmed by the lower authorities including the learned Commissioner (Appeals). N/N. 26/2012 dated 20 June 2012 was amended by Notification No. 8/2014 w.e.f. 11 July 2014 whereunder the previous notification was amended and as a result the condition of Cenvat credit availment was made applicable only with respect to the service provider. A prudent analysis of the above-mentioned notifications and their amendments lead to the conclusion that the condition of non-availment of the Cenvat credit is required to be satisfied by the service providers only and service recipient will no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellant have approached Commissioner (Appeals) against the above-mentioned order-in-original and as per order-in-appeal No. 423 (SM) CE/JPR/2018 dated 4 October 2018 the learned Commissioner (Appeals) has endorsed the findings of the original Adjudicating Authority. The appellant are before us against the above-mentioned order-in-appeal. 2. It has been the contention of the learned Advocate appearing for the appellant that the appellant is an independent manufacture having no relation with M/s Suparash Electro Product Co. a proprietorship firm and therefore their clearances cannot be clubbed with an independent separate entity which exist for a period of only three months and thereafter it has closed its operations. 3. It is submitted that M/s Suparash Electro Product Co. a proprietorship was carrying out manufacture of excisable goods falling under Chapter 72 of Central Excise Tariff Act, 1985 during the period between April 2016 to June 2016 and excisable goods valued at ₹ 29,55,128/- were cleared by them during the period and they have availed SSI exemption. It is further added that M/s Suparash Electro Product Co. has stopped all its manufacturing activities and cl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ances of them. 6. The learned Advocate appearing for appellant have cited following decisions in support of his argument :- (i) Jagjivandas Co. versus CCE 1985 (19) E.L.T. 441 (T) affirmed by Hon ble Supreme Court in 1989 (44) E.L.T. A24 (S.C.); (ii) Spring Fresh Drinks versus CCE 1991 (54) E.L.T. 333 (T) maintained in Collector versus Spring Fresh Drinks 1997 (92) E.L.T. A70 (S.C.) ; (iii) CCE versus M.M. Khambatwala 1996 (84) E.L.T. 161 (S.C.) (iv) Coimbatore Engineering Works versus CCE 2009 (239) E.L.T. 366 (Tri. Chennai) ; (v) Commissioner of Central Excise, Jaipur versus Electro Mechanical Engineering Corporation 2008 (229) E.L.T. 321 (S.C.). 7. With regard to the liability of service tax on GTA services under reverse charge mechanism basis it has been submitted that the condition of availment of the Cenvat credit is applicable only on the service provider and not on the service recipient. It has been submitted that since it was very difficult for service recipient to make compliance of the conditions of the non-availment of the Cenvat credit by the GTA service providers the trade has made various representations and CBEC has cla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The assessee is the independent manufacturer, although they had used the machinery of the M/s. Kissan Products, their clearances have to be independently taken into consideration. Merely because they have taken the premises from M/s. Kissan Products under a separate agreement that by itself is no ground to proceed to hold that during the previous year M/s. Kissan Products had exceeded the SSI limitation and benefit to be denied . This issue is also covered by the judgment rendered in the case of CCE v. Products Ideas (supra) and CCE v. Power and Control (supra). The earlier Order-in-Appeal No. 3/89, dated 24-2-89 clearly held that the assessee and McDowell are not related parties and hence the question of adding payments received by Mcdowell to the goods manufactured by the assessee does not arise. There is no flow back of funds and therefore, adding marketing charges is not proper and correct in the light of the cited judgment. The second ground to deny the benefit is that on including the marketing charges received by McDowell Co., the clearance figures would exceed the SSI unit. In this connection, it is seen that the marketing charges has not been paid for essences but for ..... X X X X Extracts X X X X X X X X Extracts X X X X
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