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Pidilite Industries Ltd. Versus Commissioner of Central Excise, Belapur/Raigad/Mumbai-II

2017 (12) TMI 270 - CESTAT MUMBAI

CENVAT credit - various input services - denial on the ground that appellant failed to provide necessary evidence before the authority below for which there was disallowance of the cenvat credit of the respective amount involved in each appeal ordered and also on the ground of nexus - Held that: - on all services, except 4 services, namely Membership of Clubs, Reverse services by Director of company, Clubs and Association services, and Real Estate Agents services, the manner of disallowance made .....

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es - Held that: - cenvat credit availed on these services are not eligible to get any cenvat credit on the facts and circumstances of the case since appellant did not bring out any appealable reason to satisfy that it has a proven case of nexus and integral connection between the input service and output manufactured - credit on these 4 services denied. - Penalty - Held that: - the penalties shall stand reduced to the extent of credit of input services disallowed. - Appeal allowed in par .....

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mounts stated under each such appeal against the respective services appearing under column No.1. TABLE-I Category of input service Appeal Nos Appeal Nos: 87224 of 2016 87250 of 2016 87251 of 2016 87342 of 2016 87343 of 2016 87190 of 2016 87191 of 2016 87192 of 2016 86178 of 2017 86213 of 2017 86214 of 2017 Air Travel Agent 21616 104 242 1804 467 5587 259 1011 42064 38572 21018 Commr/Indl Cns 794 283 6 583 231 189 779 18 11355 Event Mgmnt 26416 506 14 25024 685 10326 1265 52 66020 49054 64914 Ma .....

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2 club & assn service 46 6062 56 139 4336 3565 308 real estate agent 129 508 2473 rent a cab 1493 4520 238 works contract 165 555 3567 insurance service 16361 178 1207 intellectual property service 460 657 renting of immovable property 7719 12666 architect service 92402 Telecommunication service 4712 2703 98672 6457 9379 Telephone service 1902 478 2606 1159 4197 Tour operator 15983 555 112 8231 2276 5310 1478 692 56906 130564 1489 Travel Agent service 9987 1 24 7523 38 Total 114989 4891 462 .....

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impugned service has nexus with manufacture and clearance of final product and sales promotion." 2. Commercial & Industrial Construction I find that the appellant had not submitted any tangible documentary evidence to substantiate their contention that the impugned service has actually been utilised for repair and maintenance services. Since the said service comes under express exclusion clause of the definition of the input services under Rule 2(l) of the Cenvat Credit Rules,2004.&quo .....

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ties and clearance of final products." 4. Mailing list and Compilation services The adjudicating authority has observed that the said service is not a specified service covered under the inclusive definition of input services under Rule 2(l) of CCR,2004 and no nexus can be established with the manufacture of goods. As the appellant has not produce any tangible documentary evidence to substantiate that the impugned service has the nexus with their manufacturing activities and clearance of fi .....

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ship of clubs Since the said services come under express exclusion clause of the definition of input service, I hold that the lower adjudicating authority has rightly denied the cenvat credit to the appellant." 7. Outdoor catering service Since the said outdoor catering service comes under express exclusion clause of the definition of input service, I hold that the lower adjudicating authority has rightly denied the cenvat credit to the appellant." 8. Photography service The adjudicati .....

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e definition of input services under Rule 2(l) of CCR,2004 and no nexus can be established with in or in relation to the manufacture of goods. As the same was not specified in means portion of the definition of input services and mainly it pertains to their activities relating to business which stands deleted from the definition." 10. Rail Travel Agent service The adjudicating authority has observed that the said service is not specified service covered under the inclusive definition of inp .....

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Short term accommodation The adjudicating authority has observed that the said service is not specified service covered under the inclusive definition of input services under Rule 2(l) of CCR,2004 and no nexus can be established with in or in relation to the manufacture of goods. As the same was not specified in means portion of the definition of input services and mainly it pertains to their activities relating to business which stands deleted from the definition." 13. Sound recording The .....

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ns to their activities relating to business which stands deleted from the definition." 15. Telecommunication service The adjudicating authority has observed that the said service is not specified service covered under the inclusive definition of input services under Rule 2(l) of CCR,2004 and no nexus can be established with in or in relation to the manufacture of goods. As the same was not specified in means portion of the definition of input services and mainly it pertains to their activit .....

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ifficult to establish clear nexus between the input services and the manufacturing / business activities. The adjudicating authority has observed that the said service is not specified service covered under the inclusive definition of input services under Rule 2(l) of CCR, 2004 and no nexus can be established with in or in relation to the manufacture of goods. As the same was not specified in means portion of the definition of input services and mainly it pertains to their activities relating to .....

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. Club and Association "The adjudicating authority has observed that these services are not covered by the definition of (wrongly mentioned as 'if' in OIA) input services. Since the said service specifically comes under express exclusion clause of the definition of input service, I hold that the lower adjudicating authority has rightly denied the cenvat credit to the appellant." 20. Real Estate Agent service "The adjudicating authority has observed from the evidences submi .....

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of which I hold that the lower adjudicating authority has rightly denied the cenvat credit to the appellant." 21. Rent-a-cab operator service "The service of Rent-a-cab Operator's service comes under express exclusion clause of the definition of the input services under Rule 2(l) of the Cenvat Credit Rules, 2004, the lower adjudicating authority has rightly denied the cenvat credit to the appellant.' 22. Works contract service "Here I would like to mention that when the bi .....

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nected with the manufacturing activities." "I find that the said services is not specified service to avail the cenvat credit and also comes under exclusion clause. Further the appellant in appeal also has not submitted any tangible documentary evidences to substantiate their contention that the impugned service has nexus with manufacturing activities." 24. Intellectual property service Para 6.34- "The adjudicating authority has observed from the evidences submitted by the ap .....

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nufacturing activities and the services are not at all connected with the manufacturing activities. In the appeal also the appellant failed to submit the documentary evidence to substantiate their contention." 26. Architect service " I find that the appellant in their appeal has submitted that the said invoice was inadvertently submitted along with the reply to the SCN. I hold that the appellant should have brought up this issue before adjudicating authority which they have failed to d .....

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Input Service Utilised for 1 Air Travel Agents The "services were received for booking flights for the Company employees to attend dealer meet at different locations, business trips for sales promotion of the products, to attend the seminars and trainings for product developments, procurement of raw material/packing material, capital goods in relation to manufacture of goods, visit to various manufacturing locations etc. 2 Commercial and Industrial Construction The "services were recei .....

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promoting sales. 4 ailing List and Compilation Service The "services were received in relation to secretarial audit, maintenance of company's shares and dividends, etc. is required for statutory compliance under the Company Law 5 Mandap Keeper Service The services were received during the course of customer relation meet etc., at the HO/ and other sales offices in relation to sales promotion activities of products. Hence, the said service is in relation to manufacture and sale of final .....

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ot related to personal use or consumption by any employees and therefore are covered under the input service definition. 8 Photography service The services were received at H.O. for photo shoots of product, designing of product, etc. in relation to sales promotion. The advertisement and sales promotion activities are specifically covered under inclusive part of the Input Service definition. 9 Public relations service The Public Relation Management were received in connection with typesetting/tra .....

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were received from non-executive directors of the company during annual general meeting, audit committee meeting, etc. 12 Short term accommodation The services were received during the course of customer relation meet, marketing meetings, seminars, product related conferences; Dealers meet, etc. for the promotion of sales of their final products. These services were also not related to personal use or consumption by any employees and therefore are covered under the input service definition. 13 S .....

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ce, the service is in relation to manufacturing activity and sale of final product 16 Telephone services AS ABOVE 17 Tour operators The services were received for arranging bus facilities or organizing trips for dealers meet, seminars of sales staff, etc. at different locations. The dealer meet, seminars are conducted in relation to sales promotion of our product. Without sale, further manufacturing activity will not take place. Therefore, the said service is in relation to manufacture and sale .....

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re basically pertains to membership fees of Export Promotion council and other Federations of Export Organisations, etc. The membership is required to address export products related issues, to get an advice on various export manufacturing concepts, etc. Hence, the service is in relation to manufacture and sale of products meant for exports. 20 Real Estate Agent Services The Real Estate Agent services are provided to find out the guest houses or residential houses to make arrangement for the emp .....

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nsurance of the factory and office premises, company s assets, machinery and inventories including survey services and plant valuation. Therefore, the service has a nexus with manufacturing activity. 24 Intellectual property service The Intellectual property services were received at H.O. in relation to renewal of trademarks of subsidiary companies. The services were received at head office in relation to manufacturing activity. 25 Renting of immovable property The Renting of Immoveable property .....

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aid service is covered under the means part of the definition of Input service under Rule 2(l) of CCR, 2004 which read as any service used by the manufacturer, whether directly or indirectly, in or in relation to the manufacture of final products and clearance of final products upto the place of removal Therefore the services received even after 1-04-2011 are covered under the ambit of Input service definition 4. The justification shown by the appellant in respect of each of the services in colu .....

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nd instead proceed mechanically and arbitrarily to restrict the scope of Input service definition as explained in Appeal filed before Comm(A) (Refer para 3.1.c, page no. 9) 3)The Ld. Commissioner (Appeals) failed to appreciate that services are intangible and their nexus cannot be similar to those of inputs where consumption can be proved as mentioned in Para 5 of Appeal filed before CESTAT- Page no.k". 2 Commercial and Industrial Construction "1) The appellants submit that they have e .....

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ly upon the decision of CESTAT Mumbai in the case of Reliance Industries Ltd. Vs. CCE & ST, LTU, Mumbai [2016 (45) S.T.R. 383 (Tri-Mumbai) 3 Event Management Services "1) The appellants submit that they have explained the uses of the services which establishes the nexus with manufacturing and clearance of final product. Even submitted the relevant input service invoices. The Ld. Commissioner (A) ought to have been satisfied with the above. 2) Even the Ld. commissioner (A) erred in not c .....

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n Service "1) The appellants submit that they have explained the uses of the services which establishes the nexus with manufacturing and clearance of final product. Even submitted the relevant input service invoices. The Ld. Commissioner (A) ought to have been satisfied with the above. 2) Even the Ld. commissioner (A) erred in not considering the ambit and scope of input service definition and instead proceed mechanically and arbitrarily to restrict the scope of Input service definition as .....

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ubmitted the relevant input service invoices 2) Even the Ld. commissioner (A) erred in not considering the ambit and scope of input service definition and instead proceed mechanically and arbitrarily to restrict the scope of Input service definition as explained in Appeal filed before Comm(A) (Refer para 3.1.c, page no. 9) 3) The Ld. Commissioner (A) failed to consider that the cenvat credit on services appearing in exclusion clause of input service definition are available unless consumed for p .....

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at the cenvat credit on services appearing in exclusion clause of input service definition are available unless consumed for personal use of the employees. In submitting thus, we refer to and rely upon the decision of CESTAT Mumbai in the case of Reliance Industries Ltd. Vs. CCE & ST, LTU, Mumbai [2016 (45) S.T.R. 383 (Tri-Mumbai) " 7 Outdoor Catering service "1) The appellants submit that they have explained the uses of the services which establishes the nexus with manufacturing a .....

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ot;1) The appellants submit that they have explained the uses of the services which establishes the nexus with manufacturing and clearance of final product. Even submitted the relevant input service invoices 2) Even the Ld. commissioner (A) erred in not considering the ambit and scope of input service definition and instead proceed mechanically and arbitrarily to restrict the scope of Input service definition as explained in Appeal filed before Comm(A) (Refer para 3.1.c, page no. 9) " 9 Pub .....

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The appellants submit that they have explained the uses of the services which establishes the nexus with manufacturing and clearance of final product. Even submitted the relevant input service invoices 2) Even the Ld. commissioner (A) erred in not considering the ambit and scope of input service definition and instead proceed mechanically and arbitrarily to restrict the scope of Input service definition as explained in Appeal filed before Comm(A) (Refer para 3.1.c, page no. 9) 3)The Ld. Commissi .....

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input service definition and instead proceed mechanically and arbitrarily to restrict the scope of Input service definition as explained in Appeal filed before Comm(A) (Refer para 3.1.c, page no. 9) 12 Short term accommodation "1) The appellants submit that they have explained the uses of the services which establishes the nexus with manufacturing and clearance of final product. 2) Even the Ld. commissioner (A) erred in not considering the ambit and scope of input service definition and ins .....

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the services which establishes the nexus with manufacturing and clearance of final product. 14 Survey and map making "1) The appellants submit that they have explained the uses of the services which establishes the nexus with manufacturing and clearance of final product. Even submitted the relevant input service invoices 2) Even the Ld. commissioner (A) erred in not considering the ambit and scope of input service definition and instead proceed mechanically and arbitrarily to restrict the s .....

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bitrarily to restrict the scope of Input service definition as explained in Appeal filed before Comm(A) (Refer para 3.1.c, page no. 9) 3)The Ld. Commissioner (Appeals) failed to appreciate that services are intangible and their nexus cannot be similar to those of inputs where consumption can be proved as mentioned in Para 5 of Appeal filed before CESTAT, page no.k)" 16 Telephone services as above 17 Tour operators "1) The appellants submit that they have explained the uses of the servi .....

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their nexus cannot be similar to those of inputs where consumption can be proved as mentioned in Para 5 of Appeal filed before CESTAT, page no.k)" 18 Travel agents service "1) The appellants submit that they have explained the uses of the services which establishes the nexus with manufacturing and clearance of final product. Even submitted the relevant input service invoices 2) Even the Ld. commissioner (A) erred in not considering the ambit and scope of input service definition and i .....

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ring in exclusion clause of input service definition are available unless consumed for personal use of the employees. In submitting thus, we refer to and rely upon the decision of CESTAT Mumbai in the case of Reliance Industries Ltd. Vs. CCE & ST, LTU, Mumbai [2016 (45) S.T.R. 383 (Tri-Mumbai) - CASE law attached" 20 Real Estate Agent Services "1) The appellants submit that they have explained the uses of the services which establishes the nexus with manufacturing and clearance of .....

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ppeal filed before CESTAT, page no.k)" 21 Rent-a-cab operator "1) The appellants submit that they have explained the uses of the services which establishes the nexus with manufacturing and clearance of final product. Even submitted the input service invoices of repairs and maintenance service. The credit of such service should be available to the appellant. 2) The Ld. Commissioner (A) failed to consider that the cenvat credit on services appearing in exclusion clause of input service d .....

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of Practicing chartered accountant. 2) The credit of above service should be available as pertains to manufacturing activities and clearance of final products." 23 Insurance services "1) The appellants submit that they have explained the uses of the services which establishes the nexus with manufacturing and clearance of final product. Even submitted the relevant input service invoices 2) Even the Ld. commissioner (A) erred in not considering the ambit and scope of input service defin .....

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uses of the services which establishes the nexus with manufacturing and clearance of final product. The Ld. Commissioner (A) ought to have been satisfied with the above. 2) The Ld. Commissioner (Appeals) failed to appreciate that services are intangible and their nexus cannot be similar to those of inputs where consumption can be proved as mentioned in Para 5 of Appeal filed before CESTAT" 25 Renting of immovable property "1) The appellants submit that they have explained the uses of .....

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with manufacturing and clearance of final product. Even submitted the relevant input service invoices 2) The invoice of Chemifab Engineering pertains to repair and maintenance service was submitted inadvertently alongwith our reply to SCN in support of Architect service. This fact was brought to the notice of Ld. Commissioner Appeal in appeal filed before him and also submitted the proper invoices of Architect service. Even though the credit was disallowed on the grounds that this fact should ha .....

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Industries Ltd. Vs. CCE& ST LTU, Mumbai 2016(45)S.T.R. 383 (Tri- Mumbai) - page nos. 19 to 27 d) Steadman Pharmaceuticals (P) Ltd., Vs. CCE, Chennai-III 2016 (44) S.T.R 427 (Tri.-Chennai)- page nos. 40 to 42 " 2 Commercial and Industrial Construction a) John Deere India P. Ltd. Vs. CCE, Pune-III [2016(41)S.T.R 990 (Tri-. Mumbai) - page nos. 4 to 7 (maintenance and repair service allowed) b) Reliance Industries Ltd. Vs. CCE& ST LTU, Mumbai 2016(45)S.T.R. 383 (Tri- Mumbai) - page nos. .....

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ng India Electronics Pvt. Ltd 2017 (52) S.T.R. 497 (Tri.-All.) - page nos. 50 to 53 e) Oceans Connect India Pvt. Ltd. Vs. CCE, Pune-III 2016 (46) S.T.R. 858 (Tri.-Mumbai) - page nos.54 to 59" 4 Mailing List and Compilation Service 5 Mandap Keeper Service "a) John Deere India P. Ltd. Vs. CCE, Pune-III [2016(41)S.T.R 990 (Tri-. Mumbai) - page nos. 4 to 7 b) ACCENTURE SERVICES PVT. LTD. [2015 (40) S.T.R. 719 (Tri. - Mumbai)] - page nos. 8 to 14 c) Reliance Industries Ltd. Vs. CCE& ST .....

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0 (Tri-. Mumbai) - page nos. 4 to 7 b) ACCENTURE SERVICES PVT. LTD. [2015 (40) S.T.R. 719 (Tri. - Mumbai)] - page nos. 8 to 14 c) Reliance Industries Ltd. Vs. CCE& ST LTU, Mumbai 2016(45)S.T.R. 383 (Tri- Mumbai) - page nos. 19 to 27 d) Mangalam Cement Ltd. Vs. CCE, Jaipur 2017 (49) S.T.R. 308 (Tri.-Del.) - page nos. 72 to 73 e) Wabco TVS. (India) Ltd. Vs. CCE, Chennai-II 2016 (44) S.T.R. 417 (Tri.-Chennai) - page no.74 to 75" 8 Photography service "a) ACCENTURE SERVICES PVT. LTD. [ .....

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427 (Tri.-Chennai)- page nos. 40 to 42" 11 Director Fees under reverse charge 12 Short term accommodation a) ACCENTURE SERVICES PVT. LTD. [2015 (40) S.T.R. 719 (Tri. - Mumbai)] - page nos. 8 to 14 13 Sound recording service a) John Deere India P. Ltd. Vs. CCE, Pune-III [2016(41)S.T.R 990 (Tri-. Mumbai) - page nos. 4 to 7 14 Survey and map making a) ACCENTURE SERVICES PVT. LTD. [2015 (40) S.T.R. 719 (Tri. - Mumbai)] - page nos. 8 to 14 15 Telecommunication service "a) John Deere India P .....

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)S.T.R. 383 (Tri- Mumbai) - page nos. 19 to 27 c) India Cements Ltd. Vs. CCE, Salem 2016 (44) S.T.R. 124 (Tri. - Chennai) - page nos. 86 to 88 d) Hydus Technologies India Pvt. Ltd. Vs. CCE., Cus. & S.T., Hyderabad-II 2017 (52) S.T.R. 186 (Tri.-Hyd.) -page nos. 81 to 85" 17 Tour operators "a) ACCENTURE SERVICES PVT. LTD. [2015 (40) S.T.R. 719 (Tri. - Mumbai)] - page nos. 8 to 14 b) Reliance Industries Ltd. Vs. CCE& ST LTU, Mumbai 2016(45)S.T.R. 383 (Tri- Mumbai) - page nos. 19 t .....

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ce Industries Ltd. Vs. CCE& ST LTU, Mumbai 2016(45) S.T.R. 383 (Tri- Mumbai) - page nos. 19 to 27 c) Hinduja Foundries Ltd. Vs. CCE, Chennai-I [2016(42) STR 494 (Tri. Chennai) - page nos. 28 to 31 20 Real Estate Agent Services a) Reliance Industries Ltd. Vs. CCE& ST LTU, Mumbai 2016(45) S.T.R. 383 (Tri- Mumbai) - page nos. 19 to 27 21 Rent-a-cab operator "a) John Deere India P. Ltd. Vs. CCE, Pune-III [2016(41) S.T.R 990 (Tri-. Mumbai) - page nos. 4 to 7 b) Reliance Industries Ltd. V .....

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Mumbai)] - page nos. 8 to 14" 24 Intellectual property service 25 Renting of immovable property "a) John Deere India P. Ltd. Vs. CCE, Pune-III [2016(41)S.T.R 990 (Tri-. Mumbai) - page nos. 4 to 7 b) Commr of ST, Mumbai v MMS Maritime (India) Pvt Ltd (Tri-Mum) 2016 (41) STR 869 (TRI- MUM) - page nos. 32 to 35 c) Reliance Industries Ltd. Vs. CCE& ST LTU, Mumbai 2016(45)S.T.R. 383 (Tri- Mumbai) - page nos. 19 to 27" 26 Architect service "(a) John Deere India P. Ltd. Vs. CCE, .....

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t manufactured by the appellant. Added to this, certain services were personal in nature and inadmissible looking to the statutory provisions contained in Cenvat Credit Rules, 2004. 7. Heard both sides and perused records. 8. The reasoning given by the appellant in respect of following services in TABLE-6 below appears to be logical and reasoned. So also the manner of disallowance made by the learned authorities below is without any cogent reason and evidence to the contrary. The disallowances w .....

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