2018 (7) TMI 682

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.... 1985. During the period from March, 2012 to November, 2012, the respondent had availed Cenvat credit of service tax amounting to Rs. 33,75,904/- (Rs.32,77,576/- ST + Rs. 65552/- Ed.Cess + Rs. 32776/- H.Ed.Cess), paid by them for the services received by them for raising the height of tailing Dam for disposal of Industrial Waste in compliance with the requirement of Environmental laws. According to the department, since the aforesaid services received by the respondent could not be termed as input service therefore the respondent had wrongly availed Cenvat credit in contravention of the provisions of Rules 2(l) and 3 of Cenvat Credit Rules, 2004. Accordingly a show cause notice dated 07/08/2014 readwith corrigendum dated 12/12/2014 was issu....

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....on of this order, the amount of penalty liable to be paid shall be twenty five percent of duty ordered to be recovered above. However, this benefit of reduced penalty shall be available only if the amount of such reduced penalty has also been paid within the period of thirty days referred above". 4. On appeal, the learned Commissioner vide impugned order dated 12/02/2018 allowed the appeal filed by the respondent and set aside the Order-in-Original dated 09/01/2015. 5. I have heard learned AR for the department and learned Counsel for the respondent and perused the record of the case. The issue involved in this matter is whether the services received for raising of height of tailing dam can be treated as ‗input service' in terms of ....

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....tion 66A of the Finance Act;] [(ixb) the service tax leviable under section 66B of the Finance Act;] (x) the Education Cess on taxable services leviable under section 91 read with section 95 of the Finance (No. 2) Act, 2004 (23 of 2004); [(xa) the Secondary and Higher Education Cess on taxable services leviable under section 136 read with section 140 of the Finance Act, 2007 (22 of 2007); and] [(xi) the additional duty of excise leviable under [section 85 of Finance Act, 2005 (18 of 2005),]] : paid on - (i) any input or capital goods received in the factory of manufacture of final product or [by] the provider of output service on or after the 10th day of September, 2004; and (ii) any input service received by the manufacturer of fina....

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....ling dam is admissible to the respondents. He further submitted that the issue of admissibility of input service credit relating to raising the height of tailing dam for disposal of Industrial and hazardous waste, is squarely covered by the decision of Division Bench of this Tribunal in Respondent's own case vide Final Order No. A/53619-53620/2017-EX[DB], dated 29.5.2017 and also the order dated 07/02/2018 of this Tribunal in another case of the respondent vide Final order No. 50572-50573/2018 in which this Tribunal allowed the input service credit in respect of services for fabrication and erection work at tailing dam. He further submitted that the Cenvat credit has been rightly availed by the respondent on services in relation to raising ....

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....e 2(l) of the Cenvat Credit Rules, 2004 and as per Rule 3 of the Cenvat Credit Rules, 2004, a manufacturer or producer of final product is allowed to take credit of service tax paid on any 'input service' received by them. 9. On an identical issue in respondent's own case, this Tribunal in Excise Appeal Nos. 50958 & 50636 of 2014, titled as M/s. Hindustan Zinc Limited vs. CCE, Jaipur-II, vide Final Order No. A/53619-53620/2017-EX[DB], dated 29/05/2017 held that the Cenvat credit in dispute is allowable to the respondent and recorded as under:- "............. 8. Having considered the rival contentions, we find that the appellant assessee cannot operate their business or manufacturing facility of dutiable/ excisable goods without complianc....