TaxTMI 
TaxTMI 
2014 (12) TMI 1269
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....RPs and also in 100 gram tin packs. The period of dispute is from April, 2008 to December, 2012. The panmasala being manufactured is of Rajni Gandha brand. In respect of the panmasala manufactured in retail pouches of various MRPs, the duty liability is being discharged by the appellant under section 3A of the Central Excise Act, 1944 read with Panmasala Packing Machine (Capacity Determination and Collection of Duty) Rules, 2008 (hereinafter referred to PMPM Rules, 2008). In respect of the panmasala in 100 Gram tin packs, the appellant discharged duty liability under Section 3 that is, on the basis of actual production. The appellant are receiving various inputs and input services. Rule 15 of the PMPM Rules, 2008 states that ''notwithstandi....
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....he appellant, even if in respect of sales promotion of Rajni Gandha Panmasala in 100 gram tin packs, has also promoted the sale of the Rajnigandha Panmasala sold in the retail pouches, in respect of which the duty liability is discharged under Rule PMPM Rules, 2008, and since in respect of panmasala manufactured and cleared in retail pouches, there is prohibition on availment of Cenvat credit in respect of any input or input service, the appellant would not be eligible for the Cenvat credit in respect of advertisement and sales promotion services received by them in proportion to the clearance of the Panmasala in retail pouches. It is on this basis that the Commissioner by the impugned order dated 29-10-2013 has confirmed the Cenvat credit ....
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....ying proportionate Cenvat credit, that the appellant have strong prima facie case in their favour and that in view of this, the requirement of pre-deposit of Cenvat credit demand, interest thereon and penalty may be waived for hearing of the appeal and recovery thereof may be stayed till the disposal of the appeal. 4. Shri Yashpal Sharma, the ld. DR, opposed the stay application by reiterating the findings of the Commissioner in the impugned order and pleaded that the product being manufactured by the appellant is panmasala and the panmasala packed in retail pouches and that packed in 100 gram tins, cannot be treated as different products, that the advertisement services, even if for sales promotion of the panmasala in 100 gram tins....
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....services. There is no dispute that the appellant have paid entire duty on the panmasala manufactured and cleared in retail pouches under PMPM Rules, 2008 in cash and have not taken Cenvat credit in respect of any input used in their manufacture. The appellant have received advertisement and sales promotion service for sale of the panmasala in 100 gram packs and in respect of this service, they have taken the Cenvat credit on the basis of ISD invoices issued by their head office. There is no dispute that the advertisements focus only on the sale promotion of Rajni Gandha panmasala in 100 gram tins. The Department's case is that these advertisements have promoted the sale of panmasala in retail packs also, as the basic product, whether sold i....
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.... of final product, upto the place of removal, but also includes the service mentioned in the inclusive portion of the definition, most of which are not the services used is in relation to manufacture of final product but are used in relation to business of manufacture. Prima facie, the advertisement and sales promotion services cannot be said to have been used for manufacture of the panmasala. The sales promotion and advertisement services are obviously used in relation to manufacturing business and not directly in manufacture as a person engages in manufacturing activity for selling the manufactured goods and earning profit. The prohibition in Rule 15 of PMPM Rules is not in respect of ''input service'' as defined in Rule 2(l) of Cenvat Cr....