TMI Blog2018 (10) TMI 1547X X X X Extracts X X X X X X X X Extracts X X X X ..... the Revenue that simply because the warehouse is not meant for manufacture the appellant is not entitled to the credit of service tax. The warehouse being prior to the place of removal, the service tax paid on construction of the same is available to the appellant the demand on this count therefore needs to be set aside - credit allowed. Maintenance of ADMs - Held that:- These are used in relation to the business by the dealers of the appellant and not by the appellant himself. The manufacture and clearance of their products is complete the moment of the goods leave the factory or other place of removal. What happens thereafter is not part of the manufacture although it may be part of the business of the appellant - appellant is not enti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aler premises. These machines combine the base paint with appropriate quantities of various pigments to produce the paint of the exact shade required by the customer at the dealer s premises. It is the case of Revenue that the maintenance of these machines which are beyond the stage of manufacture and place of removal does not entitle the appellant to credit of service tax paid on maintenance of these machines. It is the argument of the appellant that these ADMs machines are linked to their process of manufacture because without these machines the products in question cannot be sold. Therefore, they are entitled to the credit of service tax paid on maintenance of these machines. 4. As far as, the credit of the service tax paid on constru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no legal requirement to separately show the credit taken on these two elements and therefore they have not suppressed any facts. The show cause notice dated 01.10.2012 was issued for the period covered is December, 2009 to January, 2011 denying credit on warehouse and for the period September, 2009 to November, 2011 denying credit on service tax paid on maintenance of ADMs. They have been filing ER-1 returns and merely because the audit has pointed out an alleged irregularity, it does not mean that there was any fraud or suppression their side. He relied on following case laws. i) Commissioner of Central Excise, Nagpur Vs. Ultratech Cement Ltd., [2010 (20) STR 577 (Bom.)] in which, the Hon ble High Court of Bombay held that the credit i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... final products and clearance of the final products up to the place of removal and included services used in relation to modernization, renovation, repairs of a factory. The appellant being a manufacturer paying excise duty, CENVAT credit has to be in terms of Rule 2(l) as applicable to him during the relevant period. The definition of manufacture under the Central Excise Act includes any process in or in relation to manufacture . Therefore, the definition is wide and would encompass any process which is related to the manufacture of the final products. As far as entitlement of credit of input services used in relation to manufacture is concerned Rule, 2(l) of CCR, 2004 itself has drawn a line and allowed credit on all services used up to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e assessee with concomitant responsibility. While the assessee can take credit on inputs or input services, it is his equal responsibility to take credit of only such amount as it is admissible to him under the rules. When Rule 2(l) of CCR, 2004 clearly indicated that he can take credit on inputs used by a manufacturer, whether directly or indirectly, in or in relation to the manufacture of final products up to the place of removal the appellant has wrongly availed the CENVAT credit beyond the place of removal and thereby evaded Central Excise duty. In this case, the nexus between irregularly availed CENVAT credit on such input services and their intention to evade Central Excise duty is apparent from the face of the record. Therefore, I ..... X X X X Extracts X X X X X X X X Extracts X X X X
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