TMI Blog2014 (11) TMI 209X X X X Extracts X X X X X X X X Extracts X X X X ..... ice tax paid on the invoices cannot be denied or utilisation reduced on the grounds that classification of the services was wrongly done at the service provider’s end. - Decided in favour of assessee. - Appeal No. : ST/10294/2013 - ORDER No. A/11848/2014 - Dated:- 28-10-2014 - MR.M.V. RAVINDRAN AND MR. H.K. THAKUR, JJ. For the Appellant : Shri T.C. Nair, Advocate For the Respondent : Shri J. Nagori, A.R. JUDGEMENT Per : Mr. H.K. Thakur; This appeal has been filed by the appellant against OIO No. 14/STC/ Commr/BRC-I/2012 dated 31.11.2012 passed by Commissioner Central Excise Customs, Vadodara. 2. When the case was called out for hearing, Shri T.C. Nair (Advocate) appearing on behalf of the appellant argued that appellant is receiving services of anagement Consultancy from M/s. Indian Hotels Company Limited (IHCL) falling under Section 65 (105) (r) of the Finance Act, 1994 while according to the Revenue the same should be classified as Business Auxiliary Services falling under Section 65 (105) (22b) of the Finance Act, 1994. Learned advocate explained that if the classification of the services is under Section 65 (105) (r) then 100% credit of inp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the service providers end can be charged by the authorities having jurisdiction over the service recipients end. Appellants have relied upon a series of case laws including those laid by the Apex Court as tabulated in Para 2 above. The judgment of CCE Pondicherry vs. Mohan Breweries and Distilleries Limited [2010 (259) ELT 179 (Mad.)], delivered by Madras High Court is relevant. The facts of that case and the conclusions arrived at in that case are as follows:- 3. The short facts which are required to be stated are that the first respondent is engaged in the manufacture of glass bottles falling under Chapter 70 of the Central Excise Tariff. On verification of MODVAT documents for the month of October, 1999, the authorities of the appellant noticed that ₹ 3,44,000/- was availed as credit on Capital Goods for No. 1 of Hindustan 2021 Loader with 2 Bar, which was classified by invoice No. 20076 dated 21-8-1999 of M/s. Hindustan Motors Limited, Pondicherry. The invoice product was classified under the heading 84.29. As 84.29 was specifically excluded item under Rule 57-Q of the Central Excise Rules, 1944, a show-cause notice was issued to the first respo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to Rule 57-Q it can be brought under other accessories and as such when the first respondent has been using the said shovel loader in the first process of manufacture of glass in the factory premises, applying the decision of the Hon ble the Supreme Court in Commr. of C. Ex., Jaipur v. Rajasthan Spinning Weaving Mills Ltd. [2010 (255) E.L.T. 481 (S.C.)], it should be held that the first respondent was entitled for credit availed. Extending the above submissions, learned counsel contended that even by applying the decision of the Hon ble Supreme Court in Sarvesh Refractories (P) Ltd. v. Commissioner of C. Ex. Customs [2007 (218) E.L.T. 488 (S.C.)], if the shovel loader by virtue of its classification as falling under 84.29 has been excluded since such a classification has been specified by the manufacturer of product itself. The first respondent s contention based on clause 5 of the table annexed to Rule 57-Q should be allowed to be exempted by the lower authorities. Learned counsel made the above alternate submission while contending that the Tribunal was justified in classifying the capital goods as one falling under the heading 84.28. 6.?Having considered the submission ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r this Court to countenance such a claim. 4.1 Hon ble Madras High Court while arriving at the above conclusion relied upon the judgment of Hon ble Supreme Court in the case of Sarvesh Refractories Pvt. Limited vs. Commissioner [2007 (218) ELT 488 (SC)]. Para 2 to 6 of this order of Hon ble Apex Court are relevant and are reproduced below:- 2. The appellant purchased Loadall from M/s. Escorts JCB Ltd. The cost element of the Loadall included excise duty to the tune of ₹ 1,79,328/-. The appellant claimed Modvat credit in respect of the said item under Rule 57Q of the Central Excise Rules, 1944 (for short, the Rules ). 3. Since the said item had been classified by M/s. Escorts JCB Ltd., the manufacturer and supplier, under Heading 84.29 and had paid duty under the said heading, the authority-in-original, viz., Dy. Commissioner disallowed the Modvat credit to the appellant by observing that the said Heading 84.29 has been specifically ousted from the definition of capital goods under Rule 57Q of the Rules. The Dy. Commissioner also imposed a penalty of ₹ 50,000/- under Rule 173Q (bb) of the Rules. 4. On appeal filed by the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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