TMI Blog2018 (5) TMI 564X X X X Extracts X X X X X X X X Extracts X X X X ..... ecember 2011 and the show-cause notice was issued on 16.1.2014, the entire demand in the present case is also barred by limitation. Appeal allowed - decided in favor of appellant. - E/20151 - 20152/2018-SM - Final Order No. 20717 – 20718 /2018 - Dated:- 4-5-2018 - Shri S.S Garg, Judicial Member Mr. Cheriyan Punnoose, Advocate For the Appellant Mr. Parasivamurthy, AR For the Respondent ORDER Per : S. S. Garg These two appeals have been filed by the appellant are directed against the common impugned order dated 17.11.2017 passed by the Commissioner (A) whereby the Commissioner (A) has rejected one appeal against the Order-in-Original No.87/2015 dated 31.7.2015 and modified the Order-in-Original No.85/2015 dated 31. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent, it was observed that the appellant had wrongly availed CENVAT credit on several input services for the period December 2008 to December 2011 and distributed the CENVAT credit to their manufacturing units situated at various locations. Thereafter, two show-cause notices were issued to the appellant for wrongly availing the CENVAT credit on various input services. After following the due process, the Additional Commissioner confirmed the demand along with interest and also appropriated the amount already paid and penalty was also imposed under Section 78(1)(d) and Section 78(1)(e) of the Finance Act, 1994 read with Rule 15(3) of the CENVAT Credit Rules (CCR), 2004. Aggrieved by the said order, the appellant filed two appeal before the Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have been allowed as input service . He also submitted that the CENVAT credit has been denied by relying upon the Notification dated 10.12.2009 issued by the Medical Council of India and also on the basis of Circular No.5/2012 dated 1.8.2012 issued by CBDT. It is his further submission that the said Circular issued by CBDT has been considered by the ITAT, Mumbai in the case of Sycom Formulations (I) Ltd. vs. DCIT-8(3) Mumbai as reported in 2016 (2) TMI 263, wherein it has been held that the said Circular was introduced w.e.f 1.8.2012 and is not applicable with regard to the earlier period. Learned counsel further submitted that the eligibility of credit has to be decided as per the CENVAT Credit Rules and cannot be denied on the basis of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , Mumbai: 2017-TIOL-2364-CESTAT- MUM. India Oil Corporation Ltd. vs. CCE, Delhi: 2014 (35) STR 411 (Tri.- Del.) 4.2 The third submission of the learned counsel for the appellant is that the demand has been confirmed by the original authority by invoking the wrong provisions and the Commissioner (A) has also upheld the same. Both the authorities have confirmed the demand by invoking Section 73 of the Finance Act, whereas the entire CENVAT credit which is under dispute pertains to manufacturing activity of the appellant and Section 73 of the Finance At, 1994 cannot be made applicable to effect the recovery. 4.3 The next submission of the learned counsel is that the entire demand in the present case is barred by limitation. The d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... only function is to distribute the credit between various manufacturing units. The demand has been confirmed against the ISD and as per the settled position of law, recovery can only be effected from the manufacturing units or the output service provider and cannot be made from the Input Service Distributor. Further, I find that the Division Bench of the Tribunal in the case of Mahindra and Mahindra Ltd. cited supra has considered this issue and has held that the demand raised on the ISD is not sustainable in law. In the present appeals, the demand was confirmed under Rule 14 of CCR, which reads as under: 14. Recovery of CENVAT credit wrongly taken or erroneously refunded. (1)(i) Where the CENVAT credit has been taken wrongly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3. For the aforesaid reasons and on a prima facie construction of the provisions of Rule 14 of the Cenvat Credit Rules, 2004, we are of the view that the impugned order is unsustainable. 4. Consequently, we set aside the impugned adjudication order and allow the appeal. We do so after waiving pre- deposit and hearing ld. Counsel, Ms. Tuhina Sinha for the appellant and Shri Govind Dixit, ld. DR for Revenue. Therefore, in view of the Division Bench decision cited supra, I am of the considered view that the CENVAT credit cannot recovered from the appellant who is an Input Service Distributor. 6.1 As far as limitation is concerned, I find that the appellants have not suppressed any material fact from the Department with intenti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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