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2023 (4) TMI 601 - AT - Central ExciseAdmissibility of CENVAT credit on the services availed prior to registration - allegations in the show cause notice that the two units were earlier separate and independent and obtained the common registration only on 31.01.2014 - whether the appellant rightly availed the cenvat credit on input services used by them in connection with setting up of their new unit which has been deleted from the inclusion part of section 2(l) post amendment of the definition of 'input service', w.e.f. 01.04.2011? - HELD THAT:- The Apex Court in SARVESH REFRACTORIES (P) LTD. VERSUS COMMISSIONER OF C. EX. & CUSTOMS [2007 (11) TMI 23 - SUPREME COURT], dealing with the issue of classification by the manufacturer and the supplier of the goods under a particular heading was please to hold that the appellant who is the consumer of those goods could not get the classification of the manufacturer change. Similarly, the case of COMMISSIONER OF C. EX., JAIPUR-I VERSUS MANGALAM CEMENT LTD. [2017 (4) TMI 499 - CESTAT NEW DELHI], holds that it is well settled position of law that the credit availed by an assessee cannot be denied or varied on the ground that the classification of service should have been made in a different category by the provider of service. Variation in the classification or consequent rate of payment of service tax is not possible at the end of the recipient of service. Once the classification is finalised at the end of the service provider the same cannot be altered at the end of the service recipient - Consequently, the cenvat credit cannot be denied to the appellant on this ground. The demand made by the revenue to deny cenvat credit by the appellant and order its recovery is rejected - question of interest and penalty no longer survives - Appeal allowed.
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