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2015 (10) TMI 289 - CESTAT KOLKATA

2015 (10) TMI 289 - CESTAT KOLKATA - TMI - Recovery of CENVAT Credit - Trading of goods - Held that:- On the major portion of the demand the Ld. Commissioner has proceeded on the premise that the appellant are engaged in trading of the goods and they have wrongly availed CENVAT Credit on input services used in carrying out the trading activities. The claim of the appellant on the other hand is that the softwares down loaded from the overseas supplier have been used in or in relation to the manuf .....

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- Dated:- 7-9-2015 - Dr. D. M. Misra, Hon ble Judicial Member And Shri H. K. Thakur, Hon ble Technical Member, JJ. For the Petitioner : Sri Siddharth Jain, C.A. For the Respondent : Sri K. Choudhuri, Supdt. (A. R. ) ORDER Per Dr. D. M. Misra This is an appeal filed against Order-in-Original No. 39/Commr./CE/KOL-III/2011-12 dated-22 March, 2012 passed by the Commr. of Central Excise, Kolkata Commissionerate-III. 2. Briefly stated the facts of the case are that the appellant are engaged in the man .....

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onfirmed with interest and equal amount of penalty was imposed. Aggrieved by the said order, the appellant are in appeal. 3. Ld. Chartered Accountant Sri Siddharth Jain for the appellant submits that the Ld. Commissioner has not considered their submissions that during the year 2008-09 to 2009-10, the appellant had discharged Service Tax of ₹ 3,33,570,228/-, under reverse charge mechanism in relation to services of down loading of software in their factory, supplied by the overseas supplie .....

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equipment and the said software was not used for trading of the soft ware as alleged. Thus, the credit is admissible on such downloaded software as an input service . Similar argument has been addressed in relation to other inputs/input services received and utilized in or in relation to the manufacture of dutiable products and not used in the exempted products/services. It is their contention that the Ld. Commissioner has not considered any of their submissions while adjudicating the case. How .....

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issioner, hence the order was passed without considering the evidences. He has no objection in remanding the case. 5. Heard both sides and perused the records. We find that on the major portion of the demand the Ld. Commissioner has proceeded on the premise that the appellant are engaged in trading of the goods and they have wrongly availed CENVAT Credit on input services used in carrying out the trading activities. The claim of the appellant on the other hand is that the softwares down loaded f .....

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software is customized and configured in the factory using the Master Test Bed for the different sites and network elements of the customer. Thereafter the software is used to configure the manufactured hardware to ensure that the hardware is functioning properly. Thereafter such software is delivered alongwith the hardware or electronically supplied and also invoiced separately and service tax is charged on such software supplies. Sample copy of the invoices issued by NSN to the customer for o .....

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