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2016 (9) TMI 46 - BOMBAY HIGH COURT

2016 (9) TMI 46 - BOMBAY HIGH COURT - 2016 (44) S.T.R. 61 (Bom.) - Whether on the facts and circumstances, in calculating amount of the eligible Cenvat Credit of service tax paid on common input services margin / value addition on trading of goods is to be considered and not entire sale price / turnover of traded goods - findings of the Tribunal relating are purely and solely based on its decision in Mercedes Benz India Private Limited Vs. The Commissioner of Central Excise, Pune-1 [2014 (4) TMI .....

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aside the findings of the Tribunal and remanded the matter back to the Tribunal for fresh finding on this question of law and on the other remaining questions of law raised therein, as they were arising out of the finding to this question of law. - In the instant case, as the other questions of law are incidental and arising out of the finding to above question and as the finding to above question being based on the decision of the Tribunal in Mercedes Benz India Private Limited and the ques .....

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pt those which are not pressed, being incidental and arising out of above question, they are also remitted back for the Tribunal to answer them as well. - Matter remitted back - Central Excise Appeal No.187 of 2015 With Central Excise Appeal No.192 of 2015 - Dated:- 20-6-2016 - S.C. DHARMADHIKARI AND DR. SHALINI PHANSALKAR-JOSHI, JJ. Mr. V. Sridharan, Senior Counsel, a/w. Mr. Prakash Shah and Mr. Jas Sanghavi, i/by M/s. PDS Legal, for the Appellants. Mr. Vijay H. Kantharia, a/w. Mr. Jitendra B. .....

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estions of law', in both the Appeals. They read as under :- Substantial Questions of Law raised in Central Excise Appeal No.187 of 2015 (a) Whether on the facts and circumstances, the credit of service tax paid on common input services used in relation to manufacture of dutiable goods and for trading activity is not available in full ? (b) Whether on the facts and circumstances, the demand raised against the Appellants is correct when no mechanism was provided in Cenvat Credit Rules, 2004 ti .....

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the Appellants ? (e) Whether in the facts and circumstances of the case, Appellate Tribunal erred in not setting aside the demand for the period prior to 31.3.2008 ? (f) Whether on the facts and circumstances, in calculating amount of the eligible Cenvat Credit of service tax paid on common input services margin / value addition on trading of goods is to be considered and not entire sale price / turnover of traded goods ? (g) Whether on the facts and circumstances, the formula for reversal of Ce .....

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circumstances of the case, the impugned order being passed without considering all the submissions made by the Appellants, is in gross violation of the principles of natural justice ? (j) Whether in the facts and circumstances of the case, the Appellate Tribunal has erred in rejecting the contention of the Appellants that the impugned show cause notice should have been issued to the ISD of the Appellants and not to the Appellants ? (k) Whether in the facts and circumstances of the case, the App .....

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redit Rules, 2004 ? Substantial Question of Law raised in Central Excise Appeal No.192 of 2015 (a) Whether in the facts and circumstances of the case, the Appellate Tribunal was justified in upholding the penalty under Rule 15A of the Cenvat Credit Rules, 2004 ? 3. At the outset, in all fairness, Mr. Sridharan, learned counsel appearing on behalf of the Appellant submits that question No.(a), (b), (i) and (j), in Excise Appeal No.187 of 2005, are not pressed by him. On instructions, he would pre .....

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Appellant is that these questions be remanded back to the Tribunal for a decision afresh. 5. As far as question (f) is concerned, it is submitted that the findings of the Tribunal relating to this question are purely and solely based on its decision in Mercedes Benz India Private Limited Vs. The Commissioner of Central Excise, Pune-1 in Appeals No.E/370, 456 and 385, all of 2011, and Appeal No. E/1019 of 2012. It is urged that in Para No.14 of its order, the Tribunal has categorically upheld its .....

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ball bearings and they are also involved in trading of certain ball bearings by importing from their associates or procuring from their subsidiary companies in India. We, therefore, do not find any strength whatsoever in the said contention of the appellant that the ratio of the judgment in the case of Mercedes Benz is not applicable. We also do not find any strength in the contention of the appellant that the judgment of the Mercedes Benz case was in the peculiar set of circumstances. 6. It was .....

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T. Services as also all other services listed. 7. In Para Nos.15 and 16 of its order, the Tribunal has again relied upon its own observations in Para Nos.16 to 18 of its decision in Mercedes Benz India Private Limited (Supra) while dealing with Rule 6(5) of Cenvat Credit Rules, 2004. 8. Thus, it is apparent, as rightly submitted by learned counsel for the Appellant, that the finding of the Tribunal to question (f), in the instant case, is based entirely on its own finding in the decision of Merc .....

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