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TMI Blog2019 (9) TMI 1517X X X X Extracts X X X X X X X X Extracts X X X X ..... Ltd. (in short, "TSL") and Tata Steel Ltd. (Tubes Division) [in short, "TSLD"] come within the ambit of the definition of "Input Service Distributor" ("ISD") under the Cenvat Credit Rules, 2004 and whether credit distributed on such ISD invoices issued by the said Regional Sales Offices ("RSOs") of the companies are admissible. The five impugned orders relate to TSL, covering the periods from January 2005 to September 2013. The remaining three appeals relate to TSLD, covering the periods from June 2007 to December 2013. 3. By the impugned orders the Commissioner has adjudicated periodical show cause notices and has held that the services in question not being input service for TSL/TSLD are not eligible for availment of credit by TSL/TSLD. According to the Commissioner, the services are those which have been used in the Regional Sales Office of TSL/TSLD or by their C & F Agents who are independently registered under service tax as service providers and, hence, while the first would not qualify for distribution in terms of the definition, the second would not be eligible to as these are input services for the C & F Agents who are independent of TSL/TSLD and get remuneration on the b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Cenvat Credit Rules. (iv) Service tax under the Act is also paid by the C & F Agents on the services rendered by them of managing the depot/stockyard. The respective C & F Agents are also duly registered in accordance with the provisions of the Act with their respective jurisdictional Service Tax authorities. The tax paid by the said C & F Agents is reimbursed to them by the RSOs and such tax paid/payable is also distributed by the said RSOs as ISDs to TSL/TSLD. (v) On the allegation that Cenvat credit was not available to TSL/TSLD on the strength of the invoices received by them through their ISDs on the ground that the same did not fall within the definition of "input service" under the Cenvat Credit Rules, periodical show cause notices were issued to both TSL and TSLD separately by the jurisdictional Central Excise authorities, which resulted in the impugned orders. 5. It has been contended on behalf of the appellants that: (i) Rule 2(m) of the Cenvat Credit Rules has defined "Input Service Distributor". The three requirements laid down in this rule, for one to be qualified as Input Service Distributor are: (a) It has to be an office of the manufacturer, (b) Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rred in respect of input services. Accordingly, the service tax which has been paid by the RSO becomes input service and in capacity of ISD, it distributes the same to TSL/TSLD. As the RSOs are the offices of TSL/TSLD, therefore the service availed by TSL/TSLD on the ISD invoices distributed by the RSOs are correct. (v) In addition, the credit availed and distributed by the ISDs pertain to the input service availed upto the place of removal, i.e., till stockyard/depot/C & F Agents. Such service used upto the place of removal for the purpose of storage and clearance of final products is well within the ambit of the main as well as inclusive part of the definition of "Input Service". (vi) The finding that the said services are not "input service" is also incorrect. "Input Service", as defined under Rule 2(1) of the Cenvat Credit Rules, as in force during the material period means "any service (i) used by a provider of taxable service for providing an output service; (ii) used by the manufacturer, whether directly or indirectly, in or in relation to the manufacture of final products and clearance of final products from the place of removal, and includes services used in relation t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly erroneous. This would be evident from the decision of the Supreme Court in CCE Vs. United Electrical Industries, 1959 (108) ELT 609 (SC) and the decisions of the Tribunal in Indian Cements Ltd. Vs. CCE, 2015 (40) STR 497 (T) and CCE Vs. Varun Motors (supra). (ix) As evident from the impugned orders itself as well as from materials and documents on record, the RSOs as ISDs distributed credit only of the service tax paid with respect to the services rendered in the respective premises of the concerned RSOs and of the services rendered by C&F Agents for managing the depots/stockyards of TSL/TSLD and that there has been no distribution of credit of the tax paid with respect to the services rendered at the C&F Agents' places/depots. The relevant materials on record also conclusively evidence that the Consignment Agents who manage the depots/stockyards and charge TSL/TSLD handling charges for the same, pay service tax on such handling charges and pass on the same to the RSOs and it is thus reimbursed service tax which is distributed to TSL/TSLD under ISD invoices by the RSOs. Such handling charges rendered by the Consignment Agents, being in the nature of service in relation to stor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... notices/statement of demands. The said adjudication orders passed by the Commissioner are as under: (i) 08-10/S.Tax/Commr/ 2016 dated 09.06.2016 - in case of TSL (ii) 02/S.Tax/Commr/2017 dated 16.02.2017 - in case of TSL (iii) 03-04/Commr/2016 dated 18.07.2016 - in case of TSLD. In addition, in respect of TSLD, for the subsequent period an adjudication order bearing No. 56/Addl.Commr/2017 dated 01.03.2017 has been passed by the Additional Commissioner of Central Excise & Service Tax. In all these orders the respective adjudicating authorities, upon detailed analysis of both facts and law, have come to the conclusion that the cenvat credits had been legally and validly availed and there was no irregularity involved. All the said four orders have been accepted by the Department and, hence, they have become final. In that view of the matter also the impugned orders cannot survive. (xiii) It is thus established that there has been no wrongful or erroneous availment of cenvat credit by either TSL or TSLD and that the Commissioner has erred in law in purporting to disallow the cenvat credit availed and to confirm the erroneous demands made in the respective show cause notices. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and question and its correctness in the case of some other assessees. The Revenue cannot pick and choose [See: Union of India & Others V. Kaumudini Narayan Dalal & Anr. [2001 (10) SCC 231]; Collector of Central Excise, Pune V. Tata Engineering & Locomotives Co. Ltd. [2003 (158) ELT 130 (SC)]; Birla Corporation Ltd. V. Commissioner of Central Excise [2005 (186) ELT 266 (SC)]; Jayaswal Neco Ltd. V. Commissioner of Central Excise, Nagpur [2006 (195) ELT 142 (SC)], etc. 7. It was held in Birla Corporation Ltd. (supra), as under: 'In the instant case the same question arises for consideration and the facts are almost identical. We cannot permit the Revenue to take a different stand in this case. The earlier appeal involving identical issue was not pressed and was, therefore, dismissed. The respondent having taken a conscious decision to accept the principles laid down in Pepsico India Holdings Ltd. [2001 (130) ELT 193] cannot be permitted to take the opposite stand in this case. If we were to permit them to do so, the law will be in a state of confusion and will place the authorities as well as the assessees in a quandary.' 4.4 Since the department has accepted the admissibility ..... X X X X Extracts X X X X X X X X Extracts X X X X
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