TaxTMI 
TaxTMI 
2016 (9) TMI 1136
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....4 to December 2007. A show-cause notice was issued demanding the tax; and dispute relates to following issues:- Sr. No. Issue Cenvat Credit Period of Dispute disallowed Rs. 1 2 3 4 1 Utilisation of Cenvat Credit in excess of 1 20% 2004-05 to December-2007 1,270,986 2 Cenvat on services utilized in construction of towers 2003-04 to December 2007 1,451,093 3 Availment of Cenvat Credit on Capital goods in excess of 50 in the same FY 2006-07 7,296,832 4 Cenvat Credit on input service related to supply of diesel 2006-07 to December 2007 598,610 5 Cenvat credit on liasoning charges 2004-05 to December 2007 993,976 6 Cenvat credit on catering charges Cenvat Credit on towers and shelters 2006-07 to December 2007 443,443 7 2007 to December 2007 4,643,553 - 8 Total credit disallowed 26,698,493 3. The show-cause notice was contested by appellant on merits and also on limitation. The adjudicating authority after following due process of law confirmed the entire demand with interest and also imported equivalent penalty and a penalty under Section 77 of Fina....
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....s it results into the immovable property. It is submitted that in identical case in the appellant own case in Appeal No. ST/87864/14-MUM vide order no. A/86782/16/SMB, dt. 30.11.2015. has allowed the credit of the such services Further, it is submitted that in the said case, the period of dispute was subsequent to 01.04.2011. Accordingly, the credit of input services falling under the category of construction and works contract was not allowed in view of the specific exclusion provided under the definition of input services. The credit of other services namely erection, commissioning and installation, consulting engineer services, business auxiliary service, business support services were allowed. In the present case, the period of dispute is prior to 1st April, 2011 i.e. 2003-04 to Dec-07. Thus credit of all the services used in setting up of the tower is eligible as there was no restriction clause provided in definition of input service during the period of dispute. (ii) Further, the credit on services used in construction of unit which results into the immovable property has been consistently allowed by the Hon'ble High Court and Tribunal in the following cases: Sr. ....
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.... cenvat credit availed. On comparison of both the columns, the credit was availed in the year subsequent to year in which the capital goods were received. The restriction of availment of credit of 50% applies only in the year of receipt of capital goods. In case the credit of 50% is not availed in the year of receipt of capital goods, then there is no restriction the Cenvat Credit Rules that the credit of entire duty paid on capital goods cannot be availed in subsequent years. In the present case, the appellant availed the credit of 100% of the duty paid on capital goods in the financial year subsequent to the financial year in which the capital goods were received. Thus, the credit is rightly availed by the appellant. The appellant also relies upon the following judgments: HERBICURE PVT. LTD., KOLKATA 2007 (216) E.L.T. 216 (Tri. - Kolkata) KEIHIN FIE PVT. LTD. 2007 (213) E.L.T. 637 (Tri. - Mumbai) Without prejudice of the above submission, in any case the demand of credit for 50% of the duty paid on the capital goods cannot be demanded as said credit will be eligible in subsequent year. Therefore, demand of credit is not sustainable. (d) The credit on input services re....
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....The appellant also relies upon following judgments in the case of M/s Coco Cola Pvt. Ltd. and M/s Ultra Tech Cement Ltd. Therefore, the credit of the same is rightly availed by the appellant. (f) Cenvat credit on catering service: The Hon'ble Tribunal in the appellants own case has allowed the credit of service tax paid on catering service in order of CESTAT Mumbai arising out of Appeal No. ST/87803/14 filed by Idea Cellular Ltd. Further, it is consistently held that the credit of catering service is available. The appellant also relies upon the judgement in case of M/s Ultra Tech Cement as reported in 2010 (260) E.L.T. 369 (Bom.). Therefore, the credit of the same is rightly availed by the appellant. (g) Cenvat credit on tower & shelter: (i) The appellant has correctly availed the credit of the of the above items as they are inputs as well as capital goods and are used for providing output services. Accordingly, the credit is rightly availed by the appellant. (ii) Without prejudice to the above submission, the issue regarding eligibility of credit on towers & shelters was decided by the Larger Bench in the case of M/s Idea Mobile Communication Ltd, M/s Idea Ce....
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....der section 80 of the Finance Act, 1994. 5. Learned Additional Commissioner (A.R.) on the other hand would take us through the impugned order and submit that the order is self explanatory and CENVAT credit has been correctly denied to appellant. He would reiterate the findings of adjudicating authority. 6. We have considered the submissions made by both sides and perused the records. 7. The issue involved in the case is the eligibility to avail CENVAT credit of service tax paid on various input services and utilization thereof. Adjudicating authority has held that appellant is not eligible to avail CENVAT credit on services utilized for construction of towers, service related to supply of diesel, liasoning services, catering charges, towers and shelters and on the capital goods. He has also held that appellant has wrongly utilized excess CENVAT credit of more than 20% of credit balance in few months despite rendering taxable non-taxable services. In our considered view the adjudicating authority has erred in coming to such a conclusion we address each issue as under:- (a) Demand pertaining to utilization of CENVAT credit in excess of 20% As per the provisions of Rule....
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....d Accountant that they had availed credit of service tax paid on the various services which are associated with the supply and running of DG set and not availed the credit of duty paid on Diesel. This stand was taken by the appellant before adjudicating authority. It seems that the same is accepted by the adjudicating authority as there are no findings recorded on this issue. On perusal of definition of inputs and input services in Rule 2(k) and (l) of Cenvat Credit Rules, 2004, we find that CENVAT credit cannot be availed of duty paid on Diesel, but there is no bar in availing CENVAT credit of service tax paid on services associated with delivery of diesel, loading in DG set etc. Accordingly, we hold that CENVAT credit cannot be denied to appellant on this point. The appeal is allowed. (e) Demand in respect of liasioning charges, catering services etc. We find that the stand of revenue on these two points seems to be not in consonance with the law as it is undisputed that appellant has engaged professional service for liasioning with various authorities for and in respect of the business activity and paid service tax to the Government. This issue is now settled by Hon&....