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TMI Blog2016 (12) TMI 397X X X X Extracts X X X X X X X X Extracts X X X X ..... aid on import of 'fixed wireless phones' between November 2004 and April 2008, demanded this amount under section 73 (2) of Finance Act, 1994 read with rule 14 of CENVAT Credit Rules, 2004, along with interest thereon, and imposed penalty of like amount under section 78 of Finance Act, 1994 read with rule 15 (3) of CENVAT Credit Rules, 2004. 2. Learned Counsel for appellant made a series of submissions pointing out the erroneous findings in the impugned order. Learned Special Counsel for respondent-Commissioner highlighted for our benefit the reasoning adverted by the adjudicating authority in the impugned order and placed reliance upon the decision of the Hon'ble High Court of Andhra Pradesh in State of Andhra Pradesh v. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and no other, reason did we take note of the decisions placed before us by Learned Special Counsel. His submission that want of possession of 'fixed wireless phones' deprives the appellant of entitlement to CENVAT credit, as laid down in the decision of the Hon'ble High Court of Andhra Pradesh, is also a ground that finds no place in the notice leading to the impugned order. 5. At the behest of Learned Counsel for appellant we have perused the show cause notice F No. V/Adj ./Service Tax-II/ 15-183/Tata Tele/ 2010 dated 8th April 2010 and do find that the disallowance, and other consequential detriment, has been proposed on the ground that appellant had allegedly contravened rule 3(1) and rule 3(5) of CENVAT Credit Rules, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r providing the output service and the capital goods are brought back to the premises within 180 days, or such extended period not exceeding 180 days as may be permitted by the jurisdictional Deputy Commissioner of Central Excise, or Assistant Commissioner of Central Excise, as the case may be, of their removal. 6. In imputing these contraventions, the narration of facts bears out that the source of credit is levy of additional duty of customs, that 'fixed wireless phones' are capital goods, that these were installed outside the premises of the appellant who is a service provider and that these were not brought back to the premises within the stipulated period of 180 days. No other contravention has been alluded to articulate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ision of taxable service. The admissibility of the Cenvat Credit under CCR ha to be interpreted consistent with the intent of the legislation, a s expressed in the relevant Sections empowering the Central Government to make CCR. The interpretation cannot override the mandate given under the main statute. The above view has been affirmed by the Hon'ble Tribunal in the case of Chemplast Sanmar Ltd. vs. Commissioner of Central Excise - 2010 (250) ELT 46 (T- Chennai) and in the case of Indian Furniture Products Lid. vs. Commissioner of Central Excise - 2011 (22) STR 504 (T Chennai).' 9. A categorical finding at the end of that protracted discussion is that '18. Thus the Cenvat credit scheme envisages a nexus between the input or ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tribunal in the case of Pepsico India Holdings Lid., Indorama Cement Pvt Ltd., Hindustan Coco Cola Beverages Pvt. Ltd. and Jaypee Bela Plant (supra). in support of their argument that their premises for the purpose of Service Tax law should extend to their entire network, which includes the premises of its customers. This argument of the Noticee is totally baseless and lacks any legal sanctity. By no stretch of imagination the premises of customers can be regarded as the extension of the premises of the Noticee from where the taxable services are provided, In all the cases relied by the Noticee, the capital goods involved were physically connected from one side to the manufacturing premises and the other end had extended beyond the factory/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It would also appear that due attention has not been paid to the statutory provisions. The availment of CENVAT credit on capital goods is predicated upon it being received in the premises of the service provider. There is no allegation that the 'fixed wireless phones' were not received at the premises of the appellant. Indeed, it would have been well nigh impossible for the appellant to have provided the phones to subscribers from some other premises. This aspect has not been considered in the impugned order. 14. The rules are stringent in requiring the retention of capital goods at the factory of production but acknowledges that capital goods used for rendering of service may have to be taken outside the premises. That rigid ..... X X X X Extracts X X X X X X X X Extracts X X X X
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