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2016 (9) TMI 1136 - AT - Service TaxCenvat credit - service tax paid on various input services and utilization thereof - Demand - utilization of CENVAT credit in excess of 20% - Held that:- as per the provisions of Rule 6(3)) of Cenvat Credit Rules, 2004, cenvat credit cannot be utilized in excess of 20% of the credit, if an assessee is providing taxable and non-taxable services. Appellant was correct in submitting that similar issue in respect of appellant is decided by this Bench as reported at [2009 (2) TMI 91 - CESTAT NEW DELHI]. Since similar issue in appellant's own case is decided in their favour following the same, we hold that revenue has no case on this issue. Demand - CENVAT credit of service tax paid on construction of tower - Held that:- on perusal of Tribunal's order , it is found that same issue was agitated before the Bench. Tribunal considering the issue from all angles held that CENVAT credit can be availed of service tax paid on services utilized for erection of towers. We do not find any reason to deviate from such a reasoned order. Accordingly, we hold that CENVAT credit availed of service tax paid on services utilized for erection of tower. Demand - availment of CENVAT credit on capital goods at one go -Held that:- it is the case of revenue that appellant cannot do so and as per rules they have availed 50% of the duty paid in first year in which CENVAT credit are received and balance 50% next year. Appellant has availed 100% credit in the second year. We find that there is no dispute that appellant is eligible to avail CENVAT credit on the capital goods and Central Excise duty is paid on capital goods; they are received by appellant and used. In our view the provisions of Rule 4(2)(a) of Cenvat Credit Rules, 2004, do no restrict availment of credit of 100% of duty paid on capital goods in the second year. The issue is now squarely covered in favour of appellant in the case of Herbicure Pvt. Ltd. [2007 (4) TMI 102 - CESTAT, KOLKATA] wherein similar issue is decided by Tribunal in favour of assessee. By respectfully following the ratio we hold that the appeal of the appellant on this point succeeds. Demand - supply of Diesel - diesel is excluded input for availing CENVAT credit - Held that:- it is claimed by the learned Chartered Accountant that they had availed credit of service tax paid on the various services which are associated with the supply and running of DG set and not availed the credit of duty paid on Diesel. This stand was taken by the appellant before adjudicating authority. It seems that the same is accepted by the adjudicating authority as there are no findings recorded on this issue. On perusal of definition of inputs and input services in Rule 2(k) and (l) of Cenvat Credit Rules, 2004, we find that CENVAT credit cannot be availed of duty paid on Diesel, but there is no bar in availing CENVAT credit of service tax paid on services associated with delivery of diesel, loading in DG set etc. Accordingly, we hold that CENVAT credit cannot be denied to appellant on this point. The appeal is allowed. Demand - liasioning charges, catering services etc. - Held that:- the stand of revenue on these two points seems to be not in consonance with the law as it is undisputed that appellant has engaged professional service for liasioning with various authorities for and in respect of the business activity and paid service tax to the Government. This issue is now settled by Hon'ble High Court of in the case of Hindustan Coca Cola Beverages Pvt. Ltd. [2010 (5) TMI 235 - CESTAT, NEW DELHI] and in respect of catering charges by the decision of this Bench in their own case in final order dated 31.03.2015 [2015 (3) TMI 1214 - CESTAT MUMBAI]. Accordingly, appeal of the appellant on these two points are allowed. Demand - Tower and Shelter - CENVAT credit of duty paid on Towers and Shelters - Held that:- the issue is no more res integra and is covered against the appellant by the judgement of the Hon'ble High Court of Bombay in the case of Bharati Airtel [2014 (9) TMI 38 - BOMBAY HIGH COURT]. Accordingly, we hold that appellant's appeal on this point fails and they are directed to pay back the amount with interest. Imposition of penalty - Held that:- since all the issues involved in this case are of interpretative nature, there is no reason to visit appellant with any penalty. - Appeal disposed of
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