9911796707
TMI Blog2010 (9) TMI 532X X X X Extracts X X X X X X X X Extracts X X X X ..... units situated at New Delhi, Mumbai and Kolkata. As such an availment was in contravention of Rule 9(2) of CENVAT Credit Rules, 2004 the appellants were issued a show-cause notice dated 30-5-2008 proposing to demand and recover Rs. 60,164 under rule 14 of CENVAT Credit Rules, 2004 read with proviso to section 11A of Central Excise Act, 1944 and imposition of penalty under rule 15 of CENVAT Credit Rules, 2004 was also proposed. 2. The adjudicating authority confirmed the demand as proposed in the show-cause notice and also demanded interest and imposed penalty under Rule 15 of the Cenvat Credit Rules, 2004. Aggrieved by such an order, assessee preferred an appeal before the learned Commissioner (Appeals). The learned Commissioner (Ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by the service provider are received by service receiver, credit should not be denied. 4. Learned DR on the other hand would submit that there is specific allegation in the show-cause notice that the appellant had availed credit of service tax paid on various input services inasmuch as the invoices have been addressed to the offices or premises other than the manufacturing unit. It is his submission that the learned Commissioner (Appeals) has correctly followed the law which indicates that the 'input service credit', as per rule 2(1)(ii) of Cenvat Credit Rules, 2004, is not available to the appellant, as the appellant has not proved how much of the services are used in or in relation to the manufacture of the final products at th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the jurisdiction of Bangalore-II Commissionerate. There is nothing on the record to indicate whether the appellant had another manufacturing unit other than this manufacturing unit. It is the submission of the learned Chartered Accountant that the appellant does not have any manufacturing unit other than the Bangalore Unit. The question now arises is whether the availment of cenvat credit on the invoices on which service tax has been paid by the service provider to their branch offices is correct or they need to be reversed. The allegation in the show-cause notice reads as under : "Whereas, during the course of verification of the records of the assessee, the departmental audit party has observed that the assessee has availed input ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ufacturer or provider of input/output services on the basis of the document which are enumerated in Rule 9(1). As I have already reproduced the allegations in the show-cause notice, it is seen that the said documents on which credit was availed is not in dispute, inasmuch as the delivery invoices on which credit has been availed by the appellant falls within the category of invoices issued by a service provider. The only question is whether the provisions of Rule 9(2) are attracted in this case. As can be seen from the above reproduced rule, provisions of rule 9(2) can be pressed into service for denial of Cenvat credit to the assessee, only if the document does not contain the particulars as required. Proviso to Rule 9(2) very clearly cont ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... situated at New Delhi, Mumbai, Kolkata can be treated as used directly or indirectly in or in relation to the manufacture of final products at Peenya, Bangalore. Thus the services received by the appellant at places other than manufacturing place cannot be treated as 'input service' as per Rule 2(1)(ii) of CENVAT Credit Rules, 2004 and the appellant is not eligible for credit of Service Tax paid on such services under CENVAT Credit Rules, 2004. The appellants' argument that there is no statutory requirement of the receipt of services at the manufacturing place and hence credit of service tax paid on services received outside the manufacturing place is eligible as credit cannot be accepted unless it is proved as to how such services are used ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e out in the show cause notice and the finding recorded by the learned Commissioner (Appeals) to reject the appeal filed by the assessee, on this ground is beyond the allegations made in the show-cause notice. 9. In sum, I find that the appellants have made out a case for credit of service tax paid on the service to their branch offices. I find that the ratio of the law as decided by the various benches of the Tribunal in the case of cenvat credit on the inputs more specifically Gujarat Heavy Chemicals Ltd. v. CCE 2005 (192) ELT 658 (Tri. - Mum.) would squarely cover the issue in favour of the assessee. In view of the foregoing reasoning, and the precedent judgments, the impugned order is unsustainable and needs to be set aside and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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