TMI Blog2022 (10) TMI 195X X X X Extracts X X X X X X X X Extracts X X X X ..... r proviso to Rule 9(2) of CCR, 2004. Hence the findings that appellants case is not covered under 2 (l) of CCR are absolutely wrong. The findings of Commissioner (Appeals) are accordingly, held as being liable to be set aside. Tour operator services - Department has alleged those services to have been personally consumed by the employees of the appellant, hence, were ineligible for Cenvat credit - HELD THAT:- It becomes clear that the visit of the employees was purely for enhancing their skills for the better output of the final product of the appellant. Hence, those services have wrongly been alleged to have been personally consumed services. Those services also to be eligible input service for availment of Cenvat credit. With these observations all the findings of commissioner (Appeals) qua the merits of the impugned aforementioned (a) (b) issue are held as liable to be set aside. Suppression of facts - wilful misstatement in contravention of rules with the intent to evade payment of service tax or not - HELD THAT:- The Show Cause Notice has been issued based upon the scrutiny of appellant s own document maintained by them in their regular course of business (the docu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... opinion that the services relates to personal consumption by the employees as were meant for their leisure/ vacations. The Cenvat Credit was found to be the inadmissible one. 2. Based on this observations that a Show Cause Notice No.4620 dated 3.9.2019 was issued proposing the recovery of inadmissible Cenvat Credit against the 10 invoices as given in the Show Cause Notice for an amount of Rs.42,92,019/- being the inadmissible Cenvat Credit on the ground that the service providers have not provided any input service to the appellant. The amount was proposed to be recovered alongwith the interest and the proportionate penalties. The said proposal was initially confirmed vide Order-in-Original No.28/2020 21 dated 30.12.2020. The appeal thereof has been rejected vide Order-in-Appeal bearing No.56/2021 dated 17.02.2020. Being aggrieved of the said order, the appellant is before this Tribunal. 3. I have heard Shri J.M. Sharma Ms. Pooja Aggarwal, Authorised Representatives for the appellant and Shri Mahesh Bhardwaj, ld. Departmental Representative for the Department/ respondent. 4. Ld. Authorised Representative for the appellant has mainly objected the invocation of extended ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a strong case seen from the point of view of merits. It is submitted that appellants manufacturing unit is located at Siltara, Raipur. However, the appellant has got the Central Registration in favour of its headquarters at 73A Central Avenue, Nagpur. This registration covers the appellants captive mines also at Raigarh. The only object whereof is to supply coal to the appellants manufacturing unit, coal being main input in manufacture of final product of the appellant. The another unit being covered under the Centralized registration is appellant s own subsidiary as Sarda Energy and Minerals Hong Kong Limited. It is submitted that all accounts of the above all places were being maintained by the appellants only. The payment in respect of the disputed 10 invoices was also made by the appellants unit at Siltara only. The Cenvat Credit of said service tax paid is mentioned to have been taken by the appellant under the bonafide belief that being the input services utilized by the manufacturing unit and the appellant being centrally registered could avail the Cenvat credit of the service tax paid by the appellant. With these submissions, ld. Authorised Representative for the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1) That appellant is a manufacturing unit but is being spread at several places including the place of their captive mines. 2) All the several places of appellant have been registered under one common centralised registration except that mines have separate registration but against the same PAN No. 3) The services availed by either of the units including mines of the appellants qualify to be the eligible input services. 4) The invoices are in the name of the appellant at their registered address (the address registered is that of the head-quarter of the appellant whereas Sarda Energy and Minerals Ltd. exist at Siltara, Raipur). 7.2 These admissions when read with rule 3 of Cenvat Credit Rules makes it clear that the appellant was entitled to avail the Cenvat Credit. Since the violation of rule 9 (1) (f) of Cenvat Credit Rules, 2004 has been alleged by the Department for availing the impugned Cenvat credit, foremost, said rule 9 is looked into which reads as follows:- (1) The Cenvat credit shall be taken by the manufacturer or the provider of output service or input service distributor, as the case may be, on the basis of any of the following document, namely:- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssioner (Appeals) in para No.9 are absolutely wrong. The invoices are mentioning all the details as are required as per rule 9 (1)(f) of Cenvat Credit Rules. The case of appellant squarely gets covered under the purview of Rule 2 (l) of Cenvat Credit Rules and also under proviso to Rule 9(2) of CCR, 2004. Hence the findings that appellants case is not covered under 2 (l) of CCR are absolutely wrong. The findings of Commissioner (Appeals) are accordingly, held as being liable to be set aside. 9. With respect to invoice No.5 the tour operator services are observed to have been availed by the appellant. Department has alleged those services to have been personally consumed by the employees of the appellant, hence, were ineligible for Cenvat credit. But, as impressed upon by ld. Authorized Representatives of the appellant, about the object of the visit of the employees, it is perused from the impressed upon document that those services were availed for the employees of the appellants for going to Bangkok to attend a programme which was organized by the Association of Quality Control Headquarter of Thailand in cooperation with Department of Industrial Promotion, Ministry of Industry. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... use Notice is observed to be based on the appellant s own document i.e. invoices as were maintained by them in regular course of business. The returns were admittedly been filed in time mentioning required details about availment of credit. There is nothing found on record which may be the proof for alleged suppression or misconduct. In a decision of Raj Bahadur Narayan (supra), Hon ble Apex Court has held as follows:- 9 . We have set out the relevant parts of the show cause notice. It speaks of an erroneously granted rebate. There is no mention in it of any collusion, wilful mis-statement or suppression of fact by the appellants for the purposes of availing of the larger period of five years for the issuance of a notice under Rule 10. The party to whom a show cause notice under Rule 10 is issued must be made aware that the allegation against him is of collusion or wilful mis-statement or suppression of fact. This is a requirement of natural justice. It is also the law, laid down by this Court in Collector of Central Excise v. H.M.M. Limited - 1995 (76) E.L.T. 497. It has been said there with reference to Section 11A of the Central Excises and Salt Act, 1944, which replaced ..... X X X X Extracts X X X X X X X X Extracts X X X X
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