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2016 (8) TMI 288 - CESTAT KOLKATA

2016 (8) TMI 288 - CESTAT KOLKATA - TMI - Cenvat credit - Distribution of credit by the ISD - duty paying documents - levy of penalty - original duty paying documents in the name of headquarters not produced during adjudication proceedings Geld that: cenvat credit allowed subject to the condition that the original duty paying document, on the basis of which Service Tax credit was taken, should be produced before the Adjudicating Authority for perusal - case remanded back to adjudicating autho .....

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x, Kolkata. 2. Shri Rajiv Kr. Agarwal (C.A.) appearing on behalf of the Appellant argued that a Cenvat Credit of ₹ 3,46,659/- was taken by the Appellant on the basis of services received by the Headquarters of the Appellant. That Cenvat Credit was taken on the basis of photocopy of such document of services rendered to the Head Office. That taking of credit on the basis of Service Tax invoices issued to the Headquarters is admissible in view of the following case laws.:- a) Alarsin vs. CCE .....

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4.2012. 3. Shri J.Bose, AC(AR) appearing on behalf of the Revenue argued that the document prescribed for taking such credit under Rule 9 (1)(g) of the Cenvat Credit Rules, 2004 is only an ISD invoice required to be issued by the Head Office of the Appellant. That not taking credit on the basis of such ISD invoice is a credit improperly taken under a wrong document for which Cenvat Credit has been correctly denied and penalty correctly imposed upon the Appellant. It was also submitted by the ld. .....

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follows:- 2. Heard both sides and perused the records. 3. The issue involved in this case is regarding eligibility of CENVAT credit of service tax paid by a Marketing Agency. The appellant has two units one is at Udhna in Gujarat and one in Mumbai. Gujarat Marketing Agency has provided the services of Business Auxiliary Services. For the products manufactured in Gujarat as well as in Mumbai. It is also undisputed that the goods were being manufactured and cleared from Udhana, Gujarat as well as .....

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h the facts of the case and case law and submit that the issue is covered by the decision of the Division Bench in the case of Doshion Ltd. (288) ELT 291 (T) = 2013-TIOL-395-CESTAT-AHM. 5. Learned D.R. reiterated the findings recorded by the lower authorities and would rely upon the Tribunal's decision in the case of Mangalore Refinery and Petrochemicals vs. CCE 2013 (30) STR 475 and Market Creators Ltd. vs. CCE 2014 (36) STR 386 (Tri-Ahmd) = 2014-TIOL-2021-CESTAT-AHM and submit that as per .....

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d invoices raised can be availed as CENVAT Credit at Mumbai. I find that when there is no dispute as regards the services received by the appellant for the activity and service tax liability having been discharged by the service provider, omission to take registration as an Input Service Distributor is to be considered as procedure irregularity. The ratio of decision taken by the Bench in the case of Doshion Ltd. (supra) which is in para 5 is reproduced.:- 5. We have considered the submissions m .....

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tributor can at best be considered as procedural irregularity and in view of the decisions cited, has to be considered sympathetically." 7. I find that both the decisions in the cases of Mangalore Refinery and Petrochemicals (supra) Market Creators Ltd. (supra) relied on by learned A.R. have rendered by the Single Member Bench. The judicial discipline, Division bench decision needs to be followed giving precedence over decision of Single Member Bench. Accordingly, the decision in the case o .....

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