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2019 (8) TMI 486

..... tently remanding the matter back to the file of the Adjudicating Authority in the light of the subsequent Board Circular No. 1065/4/2018-CX (supra) and also the binding decisions of the Hon’ble Supreme Court in the cases of COMMISSIONER OF CENTRAL EXCISE SERVICE TAX VERSUS ULTRA TECH CEMENT LTD. [2018 (2) TMI 117 - SUPREME COURT] and COMMISSIONER, CUSTOMS AND CENTRAL EXCISE, AURANGABAD VERSUS M/S ROOFIT INDUSTRIES LTD. [2015 (4) TMI 857 - SUPREME COURT] to consider the plea of the appellant that the sale was on ‘FOR’ destination basis - Matter on remand. Invoices addressed to Corporate Office - HELD THAT:- The registration as ISD is not mandatory, which is evident from the C.B.E.C. Circular No. 1063/2/2018-CX dated 16.02.2 .....

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..... the commission it received from the appellant - credit allowed. Revenue neutrality - HELD THAT:- Ld. AR contended that the assessee has to establish the same in the first place, which is to be tested and not merely accepted. Appeal allowed in part and part matter on remand. - Excise Appeal No. 40697 of 2019 - FINAL ORDER NO. 41020/2019 - 9-8-2019 - MR. P. DINESHA, MEMBER (JUDICIAL) Shri. S.S. Muralidharan, Chief Financial Officer for the Appellant Ms. T. Usha Devi, Authorized Representative for the Respondent ORDER By this appeal, the appellant has challenged the denial of CENVAT Credit in respect of the following : (i) Credit availed on GTA Services; (ii) Invoices addressed to Corporate Office; (iii) Credit availed on Hotel stay; and (iv) .....

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..... ured scrap , which is sold by auction and a commission is paid to the auctioneer. He also submits that the appellant has paid Central Excise Duty and VAT on the scrap so sold. Having accepted duty paid for the scrap, he contends that the Revenue is not justified in denying CENVAT Credit. 2.5 Summarizing his arguments, he submitted that the denial of CENVAT Credit is incorrect, as it was revenue neutral with absolutely no loss to the Revenue. 3.1 Per contra, Ms. T. Usha Devi, Ld. AR appearing for the Revenue, seriously rebutting the contentions of the appellant, submitted as under : (i) GTA Services: Primarily, the Adjudicating Authority did not have the benefit of the C.B.I.C. instructions (supra) which was issued three months after the pas .....

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..... i) This Bench has been consistently remanding the matter back to the file of the Adjudicating Authority in the light of the subsequent Board Circular No. 1065/4/2018-CX (supra) and also the binding decisions of the Hon ble Supreme Court in the cases of Commissioner of Central Excise & S.T. Vs. M/s. Ultra Tech Cement Ltd. reported in 2018 (9) G.S.T.L. 337 (S.C.) and Commr. of Cus. & C.Ex., Aurangabad Vs. M/s. Roofit Industries Ltd. reported in 2015 (319) E.L.T. 221 (S.C.), to consider the plea of the appellant that the sale was on FOR destination basis. (ii) Therefore, the Adjudicating Authority shall afford opportunities to the appellant on this, ascertain actual facts and then give a finding after considering the decisions of the H .....

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..... efit of CENVAT Credit cannot be denied to the assessee. The denial and the impugned order to this extent is set aside and this ground is allowed. III. CENVAT Credit on Hotel Stay : (i) The assessee has very clearly explained that accommodation in hotels was arranged only for technicians, which fact was also not disputed by the Adjudicating Authority. Further, as explained by the Consultant for the appellant, such technicians were needed only in case of requirement and that they were provided accommodation only for that limited purpose. This, according to him, is directly connected in relation to the manufacturing activity, though not in the activity of manufacture per se. (ii) This, according to me, deserves credit. The First Appellate Auth .....

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..... said service was an eligible input service. The above issue has also been considered in the following decisions and the courts have ruled in favour of the taxpayer : a. Essar Steel India Ltd. Vs. C.C.E., Surat-I - 2016 (335) E.L.T. 660 (Tri. - Ahmd.); b. Mangalam Cement Ltd. Vs. C.C.E., Udaipur - Excise Appeal No. 53208 of 2015 & ors vide Final Order Nos. 56683-56685/2017 dated 28.08.2017 - CESTAT New Delhi; c. National Engineering Industries Ltd. Vs. C.C.E. & S.T., Jaipur-I - Excise Appeal No. 53650 of 2015 vide Final Order No. 57218/2017 dated 10.10.2017 - CESTAT New Delhi; (iii) Going by the above, I find that the definition of Rule 2(l) of the CENVAT Credit Rules, 2004 (amended) covers commission paid on sales promotion as well .....

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