2019 (1) TMI 1106

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....004? (Appeal No. ST/172/2008). b. Whether the appellants are liable to pay cenvat credit availed and utilized in excess of 20% and as to whether the appellants are eligible to avail a cenvat credit on the service tax paid on Mobile Phone Charges under Section 73(2) of the Finance Act 1994 read with Rule 14 of Cenvat Credit Rules, 2004? (Appeal No. ST/469/2009) a. Coming to the first issue, the appellant submitted that they have obtained a registration certificate under the category of 'Clearing and Forwarding Agents' and have requested that the same be reclassified as Commission Agent which was turned on by the Commissioner of Central Excise, Service Tax and upheld by the Commissioner (Appeals) vide order 28/2008 dated 18.02.2008. The....

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....was no reason to change the existing classification as Clearing and Forwarding Agents. We find that as per the definition of 'Clearing and Forwarding Agents' in terms of Section 65(25) of the Finance Act 1994, the activities of Clearing and Forwarding Agents include that of Consignment Agent. Therefore, we find that the lower authority and the Commissioner (Appeals) have rightly upheld the classification under Clearing and Forwarding Agents. Moreover, looking into the submissions of the appellants that they did not dispute the payment of tax for the first period, we find that the appeal has no bearing on the tax liability of the appellant. Therefore, we dismiss the appeal. b. Coming to Appeal No. ST/469/2009, we find that the original au....

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....as far as this demand is concerned is not sustainable. Coming to the second issue of cenvat credit on Mobile Phone Bills availed by the appellant during 04/2004 to 12/2005, the original authority has held that out of Rs. 26,404/- (Rupees Twenty Six Thousand Four Hundred and Four only) credit taken by the appellant, credit of Rs. 7,783/- (Rupees Seven Thousand Seven Hundred and Eighty Three only) was not admissible as the telephone was not installed in the business premises up to 10.09.2004 and he further held that the balance of Rs. 18,621/- (Rupees Eighteen Thousand Six Hundred and Twenty One only) availed after 10.09.2004 is applicable in view of the CESTAT decision in Indian Rayon & Industries Ltd. Vs. CCE, Bhavnagar reported in 2006 (4)....