TMI Blog2018 (2) TMI 1399X X X X Extracts X X X X X X X X Extracts X X X X ..... m the service provider, however, initially the entire amount of service tax was paid by the service provider and later recovered from the appellant by indicating the same in the invoice - appellant eligible for credit. Appeal allowed - decided in favor of appellant. - Appeal No. E/10104/2018-SM - Final Order No. A/ 10370 /2018 - Dated:- 19-2-2018 - Dr. D. M. Misra, Member (Judicial) For Appellant: Sh. Jigar Shah (Advocate) For Respondent: Shri Nitina Nagori, (A.R.) ORDER Per: Dr. D.M. Misra Heard both the sides. 2. This is an appeal filed against order-in-appeal No. OIA-AHM-EXCUS-001-APP-203-17-18 passed by the Commissioner of Central Excise (Appeals)-I Ahmedabad. 3. Briefly stated facts of the case are th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rovider cannot be considered as a deposit as held by authorities below in considering the eligibility of credit in view of the judgment of the Hon ble Gujarat High Court in the case of Commissioner of Central Excise Ahmedabad III vs Nahar Granites Ltd. 2014 (305) ELT 9(Guj.) It is his contention that once the service tax was paid and the invoices issued indicating the payment of such service tax, the appellant are eligible to take credit of the service tax paid as the said services are used in or in relation to manufacture of finished goods. Also he has referred to the judgment of this Tribunal on similar issue in the case of Sunil Steels vs CCE 2017 (48) STR 268 (Tri-Del.). 5. He has vehemently argued that the service tax liability appo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der of taxable service to take Cenvat credit of the duty of excise specified in the First Scheduler to the Excise Tariff Act. Rule 4 of the Cenvat Credit Rules, 2004 lays down the conditions for allowing Cenvat credit. Sub-rule (1) thereof provides that Cenvat credit in respect of inputs may be taken immediately on receipt of the inputs in the factory of the manufacturer or in the premises of the provider of output service. Proviso to sub-rule (1) puts certain limitations on such immediate availability of Cenvat credit. We are however, not concerned with the proviso. 8. In terms of Rules 3 and 4 of the Cenvat Credit Rules, 2004, a manufacturer would be entitled to avail the Cenvat credit in respect of the inputs used for the manufactur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... invoicing their product. This was however, not done. Valuation was duly approved and the payment of duty was also accepted. The Tribunal further observed that We find absolutely no substance in the attempt of the learned Commissioner to convert a part of the duty so paid into deposit of duty. There is no legal basis for such presumption. The rules entitled the receipt manufacturer to avail of the benefit of the duty paid by the supplier manufacturer. A quantum of duty already determined by the jurisdictional officers of the supplier unit cannot be contested or challenged by the officers in charge of recipient unit. 7. In view of the above principle and applying the same to the facts and circumstances of the case, I do not fine any meri ..... X X X X Extracts X X X X X X X X Extracts X X X X
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