TMI Blog2016 (9) TMI 684X X X X Extracts X X X X X X X X Extracts X X X X ..... 533 - CESTAT, MUMBAI] followed - Decided in favor of assessee. - Excise Appeal No. 389 of 2010 (SM) - Final Order No. 53455/2016 - Dated:- 2-9-2016 - Ms. Archana Wadhwa, Member (Judicial) Shri R.K. Mishra, Authorized Representative (DR) for the appellant None for the Respondent ORDER Per Archana Wadhwa Being aggrieved with the order passed by Commissioner (Appeals) Revenue has filed the present appeal. I have heard Shri R.K. Mishra, learned AR appearing for the Revenue. Nobody appeared for the respondent. 2. As per facts on record, the respondents are engaged in the manufacture of glass shell falling under Chapter 70 of the 1st Schedule to Central Excise Tariff Act, 1985 and were availing the input credit of ser ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the dates prior to making payment to the service providers. It is undisputed fact that the input service on which credit was availed by M/s Samcor falls under the definition of input service in terms of Rule 2 of Cenvat Credit Rules, 2004, the service tax was paid by the service provider, the services were utilized in the manufacture of goods/providing output service. As per Rule 4 (7) of Cenvat Credit Rules, 2004 Cenvat credit on input service can be allowed on or after the date on which payment is made of the value of input service and service tax payable as indicated in the invoice, bill, challan. In this case the undisputed fact is that M/s Samcor has taken the input service credit before making payment of the value of input service a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o. V (70)3/05/Dem/07-08/9168 dated 03/12/2009 has intimated that the Annexure A to the show cause notice has been checked with returns filed by the assessee. The assessee had taken credit during a particular month. The balances opening and closing and credit taken as well as utilized during these months under question has been checked and it has been found that in none of the months under question, the closing balance had gone below the amount of wrongly taken credit. Further, it is submitted that the assessee is not maintaining RG 23A Pt. I and II for input service credit. The account of input service credit has been maintained on computer and monthly abstract of opening balance, credit taken and utilized and closing balance is enclosed. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me after making payment to the service provider, I find that credit taken by them was not utilized as evident from the jurisdictional Assistant Commissioner report in this regard which confirm this fact that the balance credit was never below the amount of credit wrongly availed by M/s Samcor. The Hon'ble Supreme Court of India in the case of CCE vs. M/s Bombay Dying Mfg. Co. Ltd. reported in 2007 (215) E.L.T. 3 (S.C.) has held that if the Cenvat credit is reversed before utilization, it amounts to as if credit was not taken. Following the said order, the Board vide its Circular No. 858/16/2007-CX dated 08th November 2007 has clarified that if Cenvat credit is reversed before utilization, it would amount to credit not having been take ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appeal to this extend. 4. The Revenue in their memo of appeal have again reiterated their stand that in as much as the credit was availed prior to payment of service tax, the same would not be admissible to the assessee. 5. I find that the short dispute in the present appeal of the Revenue is as to whether the credit availed by the Assessee can be denied to them on the sole ground that the same was availed pre-mature i.e. before the actual payment of service tax to the service provider. Undisputedly the credit is otherwise available on the services utilized by the assessee. There is also a finding of Commissioner (Appeals) that such credit, though entered in the credit accounts, was not utilized by them unless it became available to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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