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Commissioner of Central Excise and Service Tax Versus M/s. MRF And Others

2015 (10) TMI 1056 - MADRAS HIGH COURT

CENVAT Credit - whether the assessee was entitled to avail credit of service tax on the basis of TR-6 challans prior to 16.06.2005 as TR-6 challan was included as a specified document vide Notification No. 28/2005-CE(NT) dated 07.06.2005 with effect from 16.06.2005 - Held that:- Issue involved in these appeals, is no more res integra in view of the decision rendered by the Tribunal in the case of Commissioner of Central Excise, Goa, vs. Essel Pro-pack Ltd. reported in [2007 (9) TMI 43 - CESTAT, .....

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s. Raju K. Lukose ORDER R. Sudhakar, J Aggrieved by the order passed by the Tribunal allowing the assessee's appeal, the Department has filed the present appeals raising the following substantial question of law : Whether the 2nd respondent was correct in holding that the 1st respondent was entitled to avail credit of service tax on the basis of TR-6 Challans prior to 16-06-2005 as TR-6 challans was included as a specified document vide Notification No. 28/2005-CE (NT) dated 07.06.2005 with .....

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; 2,649/-, (2) ₹ 4,04,001/- and Education Cess ₹ 8,021/- respectively on Goods Transport Agency Services paid for discharging the duty prior to issue of Notification No. 28/2005-CE dated 07.06.2005, which is recoverable under Rule 14 of Cenvat Credit Rules, 2004 read with Section 11A alongwith interest under Section 11AB of the Central Excise Act, 1944. It is alleged that although the receipient of the service has been made liable to pay service tax w.e.f. 1st January, 2005 as brough .....

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t on Goods Transport Agency on the documents other than those prescribed in Rule 9 of the Cenvant Credit Rules, 2004, a Show Cause Notice was issued. 3. The adjudicating authority, vide his order dated 30.11.2006, held that the assessee is not entitled to Cenvat Credit of ₹ 1,35,152/- and Education Cess to ₹ 2,649/- availed on the TR6 challans issued during the period 01.01.2005 to 15.06.2005 and the said amount is liable to be recovered from the assessee along with interest from the .....

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core issue involved in these appeals is whether the assessee was entitled to avail credit of service tax on the basis of TR-6 challans prior to 16.06.2005 as TR-6 challan was included as a specified document vide Notification No. 28/2005-CE(NT) dated 07.06.2005 with effect from 16.06.2005. 6. The aforesaid issue involved in these appeals, is no more res integra in view of the decision rendered by the Tribunal in the case of Commissioner of Central Excise, Goa, vs. Essel Pro-pack Ltd. reported in .....

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ribed document at the relevant time and was introduced in the list of specified documents only with effect from 16-6-2005 by Notification No:28/2005-C.E. ( N.T.) dated 7.6.2005. 3. The Commissioner (Appeals) vide his impugned order has held the said documents to be proper for the purpose of availing credit by observing as under :- TR-6 challan is the most primary document evidencing payment of duty / tax. No doubt the TR-6 challan was not included in the list of specified documents. It was inclu .....

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nt. I, therefore, hold that disallowance of Cenvat credit is not correct. Consequently, interest and penalty also do not sustain. Order-in-Original is liable to be set aside. 4. Revenue in the Memo of appeal has again reiterated the same stand. Shri Prakash Shah, learned Advocate appearing for the Respondents submit that during the relevant time there was no list of specified documents on the basis of which credit could be taken. I have also heard Shri.C.S. Biradar and Shri.S.R. Savant appearing .....

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the service tax was not paid by the Respondents or they were otherwise not entitled to the credit of the same. 7. The above said decision of the Tribunal was affirmed by a Division Bench of the Bombay High Court in Commissioner of Central Excise v. Essel Propack Ltd., AIT-2015-73-HC, wherein it was held as under: 7. On going through the CENVAT Credit Rules, 2004, we find that they do not prescribe any documents for availing of service tax credit during the disputed period in respect of the serv .....

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ana High Court, in the case of Commissioner of Central Excise, Ludhiana vs. Ralson India Ltd., reported in 2006 (202) E.L.T. 759 (P &H) held that if the duty paid has the character of inputs and their receipt in manufacturer's factory and utilization in manufacture of final product is not disputed, then the credit cannot be denied to such person. It is also to be noted that the Department's Circular dated 19th November, 2001 observes that once the duty payment is not disputed and it .....

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