TMI Blog2022 (9) TMI 1285X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of the tax authorities governing the recipient to contend that such payment of tax was not in consonance with the law. Also, the competent authority has not been able to draw a distinction between diesel as goods and any duties paid thereon being ineligible for availment of credit and a charge raised upon the recipient of the service as value of the service on which tax liability under Finance Act, 1994 has been duly discharged. Appeal dismissed - decided against Revenue. - SERVICE TAX APPLICATION (MISC) NO. 85776 OF 2022 WITH SERVICE TAX APPEAL NO: 87460 OF 2016 - FINAL ORDER NO: A/85901/2022 - Dated:- 26-9-2022 - MR C J MATHEW, MEMBER (TECHNICAL) AND MR AJAY SHARMA, MEMBER (JUDICIAL) Shri Anand Kumar, Additional Commissioner (AR) for the appellant Shri S S Gupta, Chartered Accountant for the respondent ORDER Miscellaneous application is allowed. Registry is directed to amend records for change of name of appellant and respondent. 2. In this appeal of Revenue against order-in-original no. 74/STCIV/MRRR/16-17 dated 30th June 2016 of Commissioner of Service Tax IV, Mumbai dropping proceedings for recovery of CENVAT credit availed by M/s Idea Ce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es; however, it is his contention that the expenses therein being inputs used by the provider for rendering of service, with diesel as well as electricity not being eligible inputs or input service , as the case may be, under rule 2 of the CENVAT Credit Rules, 2004 the credit was accordingly taken. 6. According to Learned Chartered Accountant, the issue of acceptability of debit notes for availment of CENVAT credit stands settled by several decisions among which are that of the Hon ble High Court of Rajasthan in Commissioner of Central Excise, Jaipur I v. Bharti Hexacom Ltd [2018 (6) TMI 435 RAJASTHAN HIGH COURT] 9. Taking into consideration the fact that even first authority while considering the matter has admitted the debit note which was produced though holding it to be in contravention under Rule 9 of the Cenvat Credit Rules, 2004 but in view of the different decisions of the tribunal and in view of the observations made by the Gujarat High Court and Delhi High Court, the view taken by the tribunal is required to be accepted and the same is accepted. and of the Tribunal in Tata Motors Ltd v. Commissioner of Central Excise [2017 (8) TMI 835 CESTAT MUMBAI] ho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5. The learned Departmental Representative has cited the judgment of Larger Bench of the Tribunal in the case of CCE, New Delhi v. AVIS Electronics Pvt. Ltd. (supra), wherein it was held that when as per the provisions of the Cenvat Credit Rules, the credit could be taken only on the basis of duplicate copy of invoice or in the case of loss of duplicate copy in transit on the basis of other copy with the necessary permission of Jurisdictional Assistant Commissioner, the Cenvat credit could not be taken on the basis of other copies or in the case of loss of duplicate copy, without the permission of the Jurisdictional Assistant Commissioner. The issue involved in this case is totally different and, hence, I am of the view the ratio of this judgment is not applicable to the facts of this case. The learned Departmental Representative has cited judgment of Hon ble Punjab Haryana High Court in the case of S.K. Foils Ltd. v. CCE, New Delhi-III (supra) and of Hon ble Madhya Pradesh High Court in the case of Executive Engineer (Civil), MPEB v. Asstt. Commr., C. Ex., Ujjain (supra). The issue involved in these cases are totally different. In the case of S.K. Foils Ltd., the issue inv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ontrary to the facts noticed by me on the basis of documents submitted before me. Since it is not clear as to whether the same documents which were produced before me were produced before the Assistant Commissioner or not, the matter has to go back to the Assistant Commissioner who shall go through the documents, verify whether service has been received and whether all the particulars as required under the Rules are available in the debit notes and adjudicate the matter afresh. If documents contain details required under Rule 98 (sic) [9(2)] of CENVAT Credit Rules, benefit of Service Tax Credit may be extended. Needless to say the appellants shall be given an opportunity to present their case and also the Assistant Commissioner shall be free to get any verification if necessary done. 7. Learned Chartered Accountant also points out that in their own dispute in Idea Cellular Ltd v. Commissioner of Central Excise, Mumbai [final order no. A/89500/2016 dated 28th July 2016 disposing off appeal no. ST/384/2010 against order-in-original no. 04/STC/BR/10-11 dated 28th April 2010 of Commissioner of Customs Service Tax, Mumbai] the eligibility of reimbursements for diesel has already ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the provider of service. Variation in the classification or consequent rate of payment of Service Tax is not possible at the end of the recipient of service. There is nothing on record to state that the category of service or payment of Service Tax has been varied during the material time by the provider of service. In the absence of such situation, we find that the present appeal which is beyond the scope of the proceedings concluded against the respondent has no legal basis and merits. Accordingly, the appeal by the Revenue is dismissed. 9. On considering the submissions made by both sides, it is seen that availment of credit, whether against invoices or against debit notes that contain substantially the same information as prescribed in rule 9 of CENAT Credit Rules, 2004 stands settled by the decision of the Tribunal and of the several High Courts as noted supra. It is seen from the debit notes, as well as the invoices in question, that, while the adjustments reflect the separate charges as provided in the master service agreements, discharge of tax liability therein under Finance Act, 1994 by the provider of service and raising of the amount as due from the recipient of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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