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2015 (10) TMI 2401 - AT - Central ExciseCENVAT Credit - credit of input services distributed by the Input Service Distributor - Jurisdiction - appellant submitted that show cause notice should have been issued to ISD located at Thane and not to them (unit availing credit). - Held that:- Distinction between the location of ISD and that of a manufacturing unit itself is immaterial. Credit is finally availed and utilised by the manufacturing unit. What learned counsel is trying to say is that show cause notice should be issued to head as hand has acted as per the direction of head. In our view, as rightly pointed out by learned AR, cause of action stands with availment and utilization of credit at the manufacturing unit. Of course, ISD and manufacturing unit are integrally connected, and both of them unitedly has to resolve the issue with the department. - Decided against the assessee. Input service distributor is not providing either any service or manufacturing any goods. There is no requirement of assessment or self-assessment. Input service distributor is only receiving the invoices of service tax paid which in turn are being distributed to different manufacturing units/service providing units. ISD per se does not value, classify or decide the rate of duty relating to the services so received. Therefore there is no question of his assessing such services. All that he does is distributing the same. Role of ISD is very different than that of a registered dealer and it is because of this reason that there is a separate return in case of a registered dealer which is not so in case of ISD. In case of ISD, the normal service tax return has a column for the distribution of credit of service tax and that is sufficient to ensure that the distributed service tax is not more than that shown in the invoices. - All that input service distributor is to certify in clause (b) that they have distributed cenvat credit correctly. Based upon the heading given in the return which is a common heading for service provider as well as input service distributor, it cannot be claimed that input service distributor is making self assessment and that self assessment is required to be challenged. No rule provides for assessment/self-assessment by ISD. In view of the said position, we find that the claim of the learned counsel is required to be out rightly rejected and we accordingly do so. In case of availment of cenvat credit the primary responsibility that the credit has been correctly taken, is on the manufacturer or availer of cenvat credit as per Rule 9(5) and 9(6). Rule 9(5) very clearly provides that the burden or proof regarding admissibility of the cenvat credit shall lie upon the manufacturer or provider of output service taking such credit. In view of this position, we have no hesitation in holding that the extended period of limitation has been correctly invoked. We also note the judgment of hon’ble Madras High Court in the case of F.L. Smidth Pvt. Ltd. (2014 (12) TMI 699 - MADRAS HIGH COURT). - Demand with penalty confirmed - Decided against assessee.
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