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M/s Diamond Power Infrastructure Ltd. And Shri Amit Bhatnagar Versus Commissioner, Central Excise & Service Tax, Vadodara-II

2015 (10) TMI 2344 - CESTAT AHMEDABAD

Admissibility of CENVAT Credit - Invocation of extended period of limitation - Capital goods - Demand of Secondary and Higher Education Cess - Held that:- Issue was settled by the Larger Bench in the case of Vandana Global Ltd (2010 (4) TMI 133 - CESTAT, NEW DELHI (LB) ) in the year 2010. When an issue was disputable, then no intention to evade payment of duty or taking of wrong CENVAT Credit can be attributed on the part of the Appellant. Accordingly, 5 years extended period under Section 11A P .....

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Credit Rules, 2004 that credit of Education Cess on excisable goods and Education Cess on taxable services, can be utilized only for payment of Education Cess on finished excisable goods or payment of Education Cess on taxable service. Accordingly, the stand of the Appellant that there is no bar on utilization of Education Cess credit balance for discharging Secondary and Higher Education Cess, is not correct. The same is required to be paid by the Appellant, with the liberty of taking equivale .....

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mmissioner (Appeals), Vadodara as First Appellate Authority. Under these Orders-in-Appeal, the First Appellate Authority has upheld the Order-in-Original. 2. Shri Willingdon Christian (Advocate) appearing on behalf of the Appellants argued that the CENVAT Credit had been denied on the following:- i) Credit with respect to M.S. Bars, Angles, Channels, Plates, Steel Sheets, Cement & Plastic Sheets used in making support structures of capital goods, ii) CENVAT Credit paid on Consultancy Service .....

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g different views on this issue. That the issue was decided by CESTAT Larger Bench in the case of Vandana Global Limited Vs Commissioner 2010 (253) ELT 440 (Tri-Del). It was his case that once an issue is resolved by the Larger Bench in the year 2010, then the extended period cannot be invoked against the Appellants for earlier periods when such credit was availed. That the demand period is from May 2009 to May 2010, whereas the Show Cause Notice is issued on 11.08.2011, which is beyond the norm .....

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paid on Consultancy Services, it was argued by the learned Advocate that the Appellant is having two factories at Vadodara and Silvassa. That majority of the manufacturing activity is being undertaken at Vadodara unit. That Service Tax invoice raised by the service provider was in the name of Vadodara unit and, therefore, the credit was correctly taken. That there was no provision under the CENVAT Credit Rules at that relevant time, that CENVAT Credit of such services has to be reduced to the e .....

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f the Revenue argued that as per the provisions of Rule 3(7)(b) of CENVAT Credit Rules, 2004, Secondary and Higher Education Cess cannot be debited from the CENVAT Credit balance of Education Cess. That an amount of ₹ 2,74,771.00 utilised from credit balance of Education Cess was not proper. It was also argued by the learned A.R. that an amount of ₹ 40,000.00 was taken as excess credit by the Appellant which was subsequently reversed/debited in the RG23A Part II. It was argued that t .....

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ra) only in the year 2010. He relied upon the case law of CCE Raipur Vs Rajaram Maize Products (supra), CCE Hyderabad Vs Lofty Laboratories (P) Ltd (supra), where such demands were held to be time barred. It is observed that the items involved in this issue were M.S. Plates, Angles, Channels, etc which were the subject matter of conflicting decisions. This issue was settled by the Larger Bench in the case of Vandana Global Ltd (supra) in the year 2010. When an issue was disputable, then no inten .....

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dit on certain Consultancy Services availed by the Appellant. A total of ₹ 36,72,000.00 was involved as CENVAT Credit on these services out of which 50% credit (Rs.18,36,000.00) were allowed and remaining was disallowed by the lower authorities on the ground that the services availed also included services provided with respect to second unit situated at Silvassa and also on account of trading activity undertaken by the Appellant. It is observed from Rule 7 of CENVAT Credit Rules, 2004 tha .....

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led by the Revenue:- 4. The assessee had availed the Service tax credit based on the invoices issued by the Chennai office indicating that the Service tax are taken by their unit at Malur. That the Service tax paid by the Chennai unit pertains to advertisement of their product Sabena Dish Wash Bar which was manufactured by their Cuttack Unit and not by the unit at Malur. Therefore, the assessee was dealing with the very same product. Rule 7 of the Cenvat Credit Rules governs procedure/manner of .....

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