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M/s. Auto Window Versus Commissioner of Central Excise, Mumbai-II

2015 (9) TMI 367 - CESTAT MUMBAI

Denial of CENVAT Credit - supplementary invoice - service provider had paid the service tax after detecting by the department - Interest u/s 11AA - Business Auxiliary Services - Job works - Suppression of facts - Held that:- Service provider has carried out the job on the material supplied by the appellant and the said job work goods returned to the appellant. Appellant has used the said goods in the manufacture of other final product which has been cleared on payment of duty. Thus job work acti .....

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f Finance Act, 1994 on the ground that they have paid service tax alongwith interest.

Payment of service tax by the service provider and issuance of supplementary invoices there against there is no suppression of facts on the part of the service provider. It is also observed that in the entire proceedings, in the present case, only ground for denial of Cenvat Credit is that service provider has paid service tax on detection by the department. Merely because department has detected an .....

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2071/2015-WZB/SMB - Dated:- 26-5-2015 - Ramesh Nair, Member (J),J. For the Appellant : Shri Prasad Paranjape, Adv. For the Respondent : Shri H M Dixit, Asstt. Commissione (AR) ORDER Per: Ramesh Nair: This appeal is directed against Order-in-Original No. 21/RN/COMMR/M-II/2013-14 dtd. 22/11/2013 passed by the Commissioner of Central Excise (Appeals) Mumbai II, wherein Ld. Commissioner confirmed demand of Cenvat credit of ₹ 46,36,461/- in terms of Rule 14 of Cenvat Credit Rules, 2004 read wit .....

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Credit Rules, 2004. The appellant supplied inputs to their group company i.e. M/s. Auto Window India Pvt. Ltd. (M/s. AWIPL) for manufacture of intermediate goods on job work basis. The job work goods subsequently used in the manufacture of appellant's final product which is cleared on payment of duty. During the scrutiny of the ER-1 department found that the appellant has taken Cenvat Credit on input services amounting to ₹ 52,40,658/- on the service tax and which was paid by their job .....

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al demand of ₹ 52,40,658/-, a demand of ₹ 46,36,461/- was confirmed therefore appellant is before me. 3. Shri Prasad Paranjape, Ld. Counsel for the appellant submits that only ground for denial of Cenvat Credit is that service provider who paid the service tax discharged the service tax liability only on detection by the department during the audit and therefore adjudicating authority has contended that credit is not admissible in terms of 9(1)(bb). It is his submission that first of .....

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ufacture of final product i.e. dutiable goods by the appellant and therefore service was exempted under the said notification. When this position is not under dispute there is no question of allegation of suppression of facts on the part of service provider. He further submits that service provider has paid service tax admittedly on insistence of audit officer as the same is admitted in the show cause notice also. After payment of service tax alongwith interest service provider made intimation t .....

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al officer of the service provider. Department has accepted the proposal of the service provider for waiver of show cause notice in terms of Section 73(3) of Finance Act, 1994. He submits that in this undisputed position there is no question of alleging any suppression for recovery of said service tax at the end of service provider because Section 73(3) is applicable only in the case where there is no suppression, mis-declaration fraud etc is involved. He further submits that since no show cause .....

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therefore their case is not covered under the Explanation clause provided under Rule 9(1)(bb) of Cenvat Credit Rules, 2004. 4. On the other hand, Shri. H. M. Dixit, Ld. Asstt. Commissioner (A.R.) appearing on behalf of the Revenue reiterates the findings of the impugned order. He further submits that it is admitted fact that service tax for which appellant has taken the credit was paid by the service provider only after detection by the department and not on their own in regular course. Therefor .....

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made by both sides and perused records. 6. Service i.e. job work on which service tax was paid, in my considered view such service was not taxable service under Finance Act, 1994 for the reason, the activity is undisputedly amounting to manufacture in terms of Section 2(f) of the Central Excise Act, 1944, therefore as per Section 65(19) in 'Business Auxiliary Services' under subheading 'Production' or on processing behalf of the client", there is exclusion "but does not .....

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relation of manufacture of any other goods falling under first schedule of Central Excise Tariff Act, 1985 on which appropriate duty of excise is payable. In the present case, service provider has carried out the job on the material supplied by the appellant and the said job work goods returned to the appellant. Appellant has used the said goods in the manufacture of other final product which has been cleared on payment of duty. Thus job work activity was exempted from payment of service tax. I .....

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