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2015 (10) TMI 1564 - CESTAT MUMBAI

2015 (10) TMI 1564 - CESTAT MUMBAI - TMI - Availment of CENVAT Credit - input services - nexus with manufacture - Suppression of facts - Inadmissible documents - erection, installation and commissioning services - Held that:- Appellants have paid excise duty on the same price on the invoice price of the conductors which includes the installation charges. Accordingly, the said services of installation, erection and commissioning provided by a third party have been utilised by the appellant in the .....

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appellant also paid service tax on the provision of said services and as such the input service credit taken of ₹ 86,808/- is allowable which is paid by the sub-contractor. I hold that the said credit of ₹ 86,808/- also allowable. It is also held that the services in respect of clearance of the final product from the place of removal. Under the circumstances, if the premises of the buyers as the appellant had taken both selling of the products as well as the installation which is in .....

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account pay cheques and the payments are reflected in the bank statements. Under the circumstances, I hold that the Cenvat credit is allowed.

As regard denial on the ground of inadmissible documents appellant have not brought any additional records even at the first appellate stage before this tribunal in support of the allowability of the credit disallowed. As such, I uphold the allowance of input credit on account of defective documents. - Decided partly in favour of assessee. - APP .....

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ir output products. The appellant also does job works and in some cases, they also undertake erection, installation and commissioning of the conduct systems manufactured by them at the premises of the buyer. Pursuant to the investigation at the premises of the appellant, a show-cause notice dated 10/06/2008 was issued invoking extended period for the period 01/04/2005 to 31/02/2008 alleging therein the appellant had taken credit of ₹ 3,29,697/- on erection, installation and commissioning s .....

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of ₹ 14,524/- taken on BAS (job work) appears to be not admissible as the service tax was not payable in view of the exemption Notification No.8/2005-ST dated 01/03/2005. Further, credit of ₹ 97,103/- appears to be not admissible on the ground that documents based on which the credit was taken were not valid. It was further willfully suppressed the fact that they intend to avail Cenvat credit. The appellant contested the show-cause notice by filing the reply and the same was adjudic .....

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t whereas in the adjudication order, the same was traveled beyond the scope of show-cause notice and confirmed the proposed amount holding that the service was given to buyer beyond the place of removal. It is further stated by the learned Counsel, it is evident from the purchase order given by the customers wherein the quotation given by the agent of the appellant for sale of the conductor it was mentioned that installation charges are included. The purchase order was given by the buyers with r .....

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the CBEC instructions providing that the sub-contractor is not liable to pay service tax and the tax liability is on the main contractor. They referred on the earlier decision in the case of CCE Vs. Tube Investments of India 2004 (176) ELT 363 (Tri) and it was held that once the duty is actually paid by the input supplier or the recipient manufacturer is entitled to the credit irrespective to the fact that whether such inputs were liable to duty or not. Following the same analogy, this Tribunal .....

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ctor assessee cannot be denied. The learned Counsel also relying on the ruling in the case of Autoprint Machnery Manufacturers Pvt. Ltd., Vs. CCE, Coimbatore 2010 (19) STR 428 (Tri-Chennai) wherein it was held that the credit was taken by the manufacturer but the service tax paid on installation and training which was objected by the Revenue on the ground that installation and training was carried out not in the factory premises of the appellants but at the premises of their customers and on the .....

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Cenvat credit points out that in the case of Alidhara Textool Engineers Pvt. Ltd. case, the machinery was cleared from the factory in CKD condition and these were assembled at the premises of the buyers and was an extension of the process of manufacture. The learned DR further relies on the ruling in the case of Deepak Fertilizers & Petrochemicals Corporation Ltd. Vs. CCE, Belapur 2013 (288) ELT 316 (Tri-Mumbai) wherein it was held that in the case of assessee availing Cenvat credit in the .....

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give the benefit in respect of inputs it has done so by specifically mentioning as procurement of inputs and inward transportation of the inputs. Accordingly, it was held by this Tribunal that input services used in relation to storage of inputs outside the factory will not be eligible for the credit. The learned Counsel for the appellant assessee states that the said ruling of the Tribunal have been modified by the Hon ble Bombay High Court in the case of 2013 (32) STR 532 holding that the Cenv .....

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ve been utilised in the course of manufacturing and accordingly, the Cenvat credit is allowable. The appellant also points out that out of total amount of ₹ 3,29,697/- in respect of erection and commissioning and installation services of ₹ 86,808/- on account of credit on service tax paid by sub-contractor wherein the appellant have undertaken sub-contract for erection and commissioning. The appellant also paid service tax on the provision of said services and as such the input servi .....

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o 01/04/2008, whereas under Rule 2 (l) of Cenvat Credit Rules the expression was from the place of removal which was subsequently amended with effect from 01/04/2008 upto the place of removal. Accordingly, the credit of outward transportation of ₹ 1,247/- is fit to be allowed. 7. The learned DR relies on the Ruling of the Hon ble Calcutta High Court in the case of CCE, Kolkata Vs. Vesuvious India Ltd. 2014 (34) STR 26 (Cal) on the issue of service tax paid by the manufacturer on outward tr .....

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d after 01/04/2008. On reading the definition under Cenvat Credit Rules 2 (l) (ii) it would appear that outward transportation charges of Rs…. is claimable only with regards to those transports which were made from one place of removal to another place of removal. The learned DR further points out that the Commissioner has recorded the findings that transport charges recovered separately from the buyers and did not confirm an integral part of the price of the goods and as such the Cenvat .....

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al. As such, the same to be allowable following the ruling of Hon ble Gujarat High Court in the case of 2012 (25) STR 4 and also the ruling of the Hon ble Karnata High Court in the case of 2011 (23) STR 97. It is also pointed out by the learned Counsel that it also referred with a view taken in Vesuvious India Ltd case and in the case of CCE, Chennai Vs. Ultratech Cements Ltd. 2014-TIOL-563-CESTAT-Mad. 8. In view of the decision taken b y the Honble Gujarat High Court and Karnataka High Court, .....

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