TMI Blog2023 (1) TMI 186X X X X Extracts X X X X X X X X Extracts X X X X ..... e respective jurisdictional high court, however in absence of any stay order by any of the High Courts, the Tribunal orders shall prevail. Hence, following the precedent decision of Tribunal in the Appellant s own case and also following the judicial discipline as per which the decisions of the co-ordinate benches of the tribunal are binding on us, we do not find any merits in the impugned orders and the same are liable to be set aside. Appeal allowed. - Excise Appeal No.10573-10574 of 2015 - A/10001-10002 /2023 - Dated:- 4-1-2023 - MR. RAMESH NAIR, MEMBER (JUDICIAL) AND MR. RAJU, MEMBER (TECHNICAL), Shri B.L. Narasimhan, Shri Jigar Shah, Shri Amber Kumawat (Advocates) for the Appellant Shri Ghanasyam Soni, Joint Commissioner (AR) for the Respondent ORDER Appeal No. E/10573/2015 is filed by appellant - M/s. Dabur India Limited (Unit-1) against Order-in-Original No. VAP-EXCUS-000-COM-014-14-15 dated 30.12.2014 and Appeal No. E/10574/2015 is filed by appellants-M/s. Dabur India Limited (Unit-2) against Order-in-Original No. VAP-EXCUS-000-COM-015-14-15 dated 30.12.2014. The issue in both these appeals is common. Therefore, they are taken up together for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ading goods should not be disallowed. The said show cause notices was adjudicated through the above impugned Orders-in-Original. Aggrieved by the said impugned orders, appellants are before this Tribunal. 03. Shri B.L.Narsimhan, learned counsel appearing for the Appellant submits that dispute regarding the eligibility of credit by the ISD unit Sahibabad unit of M/s Dabur India has been settled by the Hon ble Tribunal vide Final Order No. A/70452-53/2017 dated 13.04.2017. The Hon ble CESTAT has set aside the entire demand raised against the ISD unit. Thus, the entire Cenvat Credit availed by the ISD on disputed input services has held to be eligible, including the credit sought to be denied in the impugned orders from the Appellants. Once the availment and distribution of credit by the ISD is held to be proper, there is no question of denying the same credit at the hands of the recipient units on the same grounds and for the same period. In the same Order dated 13.04.2017 the Hon ble CESTAT, has also set aside the demand for denial of Credit raised against the Sahibabad unit of the Appellants on identical grounds as the show cause notice in the present case. 3.1 He also subm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le service and is beyond the application of Cenvat Credit Rules, 2004. However, the said finding is contrary to the clarification issued by the Board vide Circular No. F.No. 334/3/2011-TRU dated 28.02.2011 and Circular No. 943/4/2011-CX dated 29.04.2011 wherein trading has been considered an exempted service. 3.5 Without prejudice to above, he further submits that trading activity was neither exempted goods nor exempted services prior to 01.04.2011, as trading activity was included in the definition of exempted service only after the amendment of Rule 2 (e) of Cenvat Credit rules, 2004 w.e.f. 01.04.2011 by Notification No. 03/2011-CE(NT) dated 01.03.2011. Thus Ld. Commissioner has grossly erred in concluding that the credit availed in relation to traded goods prior to 01.04.2011 is required to be reversed. In order to substantive above submission he placed reliance on the following decisions:- A MENARINI INDIA PVT. LTD. VS. CST-SERVICE TAX 2022-VIL-810-CESTAT- AHM-ST ADANI ENERGY LTD. VS. CST SERVICE TAX- 2022-VIL-203-CESTAT AHM-ST. INFINIUM MOTORS GUJ. PVT. LTD. VS. CST SERVICE TAX 2022-VIL-738-CESTAT-AHM-ST 3.6 He also submits that the restrictions of Rul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that Clause (d) of Rule 7 of the Cenvat Credit Rules, 2004 which was introduced subsequent to the period of show cause notice was relied upon by Original Authority for confirmation of demand and therefore the impugned order is not sustainable. He further contended that Rule 14 of the Cenvat Credit Rules, 2004 cannot be relied upon for recovery of alleged inadmissible Cenvat credit from M/s. Dabur India Limited (ISD). He further relied on the Final Order No. 52089-52090/2017-DB, dated 3-3-2017 passed by Coordinate Bench of this Tribunal in the case of M/s. Secure Meters Ltd. v. Commissioner of Central Excise Service Tax, Jaipur [2017 (3) GSTL 422 (Tri.-Del.)]. He has contended that in the said case services were utilized at the level of corporate office of the manufacturing Units and in terms of said Rule 7 of the Cenvat Credit Rules, 2004, credit was distributed to the Unit manufacturing dutiable goods. It was further held in the said Final Order No. 52089-52090/2017-DB, dated 3-3-2017 that Rule 7 of the Cenvat Credit Rules, 2004 was amended vide Notification No. 5/2014-C.E. (N.T.), dated 24-2-2014 whereby the explanation was substituted with used by one or more units in the pl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er hearing both sides and on perusal of material available on record, it appears that an identical issue in the assessee-Appellant s own case has come up before the Allahabad Bench of this Tribunal and the Tribunal vide Final Order No.7045270453/2017 dated 13.04.2017 has observed as under: 6. Having considered the rival contentions and on perusal of the records, we find that the Original Authority has specifically relied on provisions of Clause (d) of Rule 7 of the Cenvat Credit Rules, 2004 for confirmation of demand whereas no such provision has been invoked in the said Show Cause Notice because during the material period such provisions did not exist on statute. We further find that in Para 14 15 of the said Show Cause Notice a methodology was adopted for distribution of Cenvat credit into admissible and inadmissible credit on the basis of turnover. We do not find any provision of law for doing so. We further find that Clause (b) of Rule 7 of the Cenvat Credit Rules, 2004 that existed during material time provided that such Cenvat credit of Service Tax paid was not admissible to be distributed which was exclusively used in unit engaged in the manufacture of exempted goods ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssion was substituted with used by one or more units in the place of used in a unit . Further, such an amendment will have no bearing in the present proceedings which cover the period prior to Jan 2010. The submissions of the appellant is supported by the decision of Tribunal in the case of Elder Pharmaceuticals Limited (supra). By following our earlier decisions (supra), we find no reason to sustain the impugned orders and the same are hereby set aside. 5. In the result, the appeals filed by the assessee-Appellants are allowed. DABUR INDIA LIMITED- 2018 (2) TMI 618- CESTAT Ahmedabad Heard both sides. These two Appeals are filed against the Order-in-Appeal No. VAP-EXCUS- 000-APP-04-14-15 and No.VAP-EXCUS-000-APP-05-14-15 both dated 21.4.2014 passed by the Commissioner (Appeals), Central Excise Customs, Vapi since involved a common issue are taken up together for disposal. The Appellants are having manufacturing location at various places including Buddy and Rudrapur where the manufactured goods are exempted from payment of duty. The Appellant during the relevant period availed CENVAT credit of the service tax paid on various input services at their ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t engaged in the manufacture of exempted goods. The said Show Cause Notice nowhere established that the Cenvat credit which was proposed to be recovered was used in a unit exclusively engaged in manufacture of exempted goods. It is admitted that the Services such as Advertisement Service Sales Promotion Services, were utilized in Corporate Office, Kaushambi, Ghaziabad. The Id. Counsel also contended that both the Show Cause Notices are hit by limitation. He has also contended that the second Show Cause Notice is repetition of the first Show Cause Notice. We keep the issue of limitation open. We set aside both impugned Order-in-Original and allow both appeals. The appellants shall be entitled for consequential relief, if any, as per law. 5. Subsequently, the Delhi Bench had also followed the said decision and decided the issue in favour of the Appellant. Adhering to the judicial discipline and following the aforesaid precedent, the impugned orders are set aside and the Appeals are allowed with consequential relief, if any, as per law. In the above Tribunal s decision in the appellant s other units, the same facts and issue are involved. Therefore, the issue in the prese ..... X X X X Extracts X X X X X X X X Extracts X X X X
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