TaxTMI 
TaxTMI 
TaxTMI 
2019 (10) TMI 167
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..../2018 No.BEL-EXCUS-000-APP-MSC-058/2017-18 dt.25.4.2018 November 2015 to July 2016 Rs. 3,05,604/- Rs. 30,560/- 2. Briefly the facts of the present case are that the appellant are engaged in the manufacture of alloy steel and non-alloy steel falling under Chapter 72 of the Schedule to the Central Excise Tariff Act, 1985. The internal Auditors of the Department vide FAR No. 474/2012-13 have observed that the appellant has availed input service credit on minimum take of pay (MTOP) charges and electricity charges on the invoices of M/s Praxair India Pvt. Ltd. The Department was of the opinion that MTOP charges are not input service. Hence, the four SCNs as stated above were issued for demand of CENVAT credit wrongly availed along with applicable interest and penalty as stated above. All the four SCNs were adjudicated as detailed above and recovery of wrongly availed CENVAT credit was ordered along with applicable interest and imposition of penalty. Aggrieved by the Order-in-Original, the appellant filed appeals before the Commissioner (A) who vide the impugned orders rejected the appeals and confirmed the Order-in-Original. 3. Heard both sides and perused the records. 4. Learned....
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....he supplier manufacturer. A quantum of duty already determined by the jurisdictional officers of the supplier unit cannot be contested or challenged by the officers in charge of the recipient unit. He also submitted that Department having advised and accepted the Service Tax paid by M/s Praxair on the MTOP and other charges, the credit cannot be denied to the recipient on the ground that the same was not a taxable service. In support of this submission, he relied upon the following decisions: * CCE & Cus Vs MDS Switchgear Ltd., 2008 (229) ELT 485 (SC). * Sarvesh Refractories (P) Ltd. Vs CCE & C, 2007 (218) ELT 488 (SC). * Final Order No. 20288/2019 dated 27.03.2019 passed by CESTAT, Bangalore in the case of Mukund Ltd. Vs CCE, Belgaum. * India Vision Satellite Communications Pvt. Ltd. Vs CCE & ST, Cochin, 2015 (39) STR 684 (T-Bang). * CCE, Ahmedabad Vs Nahar Granits Ltd., 2014 (305) ELT 9 (Guj.). * Balakrishna Industries Ltd. Vs CCE, Jaipur, 2014 (309) ELT 354 (T-Del). * CCE Vs Perfect Synthetics, 2006 (206) ELT 71 (P&H). * CCE, Mumbai Vs Anand Arc Electrodes Pvt. Ltd., 2010 (252) ELT 411 (Tri. Mumbai). * Maersk India Pvt. Ltd. Vs CCE, Raigad, 2008 (12) STR 150 (T....
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.... of CENVAT credit, description of the service, etc. Further, the appellants have submitted ER-1 Returns showing taking and utilization of the CENVAT credit as per the prescribed format. He further submitted that there is no other prescribed method in law for intimating the Department of the fact of taking credit on goods and services. He also submitted that the issue of taking CENVAT credit on declared services is a matter of interpretation of law and therefore, there is no justification to allege suppression of facts or malafide intention to invoke the larger period of limitation. In support of this, he relied upon the following decisions: * Saboo Coatings Ltd. Vs Commissioner of C.Ex., Chandigarh, 2014 (36) STR 447 (Tri. Del.). * New Allenberry Works Vs CCE, Delhi-IV-2014 (35) STR 544 (Tri. Del.). * Hi Tech Power & Steel Ltd. Vs Commissioner of C.Ex., Raipur, 2014 (34) STR 276 (Tri. Del.). * CCE, Kolkata-VI Vs ITC Ltd., 2013 (291) ELT 377 (Tri. Kolkata). * CCE, Indore Vs Medicaps Ltd., 2011 (24) STR 572 (Tri., Del.). 4.3. He further submitted that the penalties imposed under Rule 15 (1) & (2) of CCR, 2004 read with Section 11AC of CEA, 1944 alleging suppression of fact....
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....Any service to be brought within the ambit of definition of "input service" should be one which should specify the essential requirement contained in the main part of the definition. This requirement is equally applicable to the various items mentioned in the inclusive part of the definition as well. In this view of the matter, I am constrained to hold that the appellant is not entitled to Cenvat credit on any of the four items of "services" in question. In respect of some of the said services, they have not adduced evidence to establish the nexus, if any, between the "services" and the manufacture/clearance of the final products." 5.2. He further referred to the decision in the case of State of Rajasthan Vs Basant Agrotech (India) Ltd., 2014 (302) ELT 3 (SC) wherein the Hon‟ble Supreme Court has observed as under: "Interpretation of statutes - Fiscal statues - Liability of a subject to tax - It is determined by strict letter of law and not merely on spirit of statute or substance of law - Equitable considerations, presumptions and assumptions are entirely out of place - No tax can be imposed by inference or by analogy or by trying to probe intentions of legislature and by....
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....SC 870, p 873]." 5.4. Learned AR also submitted that the extended period has rightly been invoked in the present case because in a self-assessment era, the assessee has to find out himself as to what CENVAT credit is available to him. Further, he submitted that input service in the present case was not used directly or indirectly in the manufacture of final product, and therefore does not fall within the definition of "Input Service". 6. After considering the submissions of both the parties and perusal of the material on record and the various decisions relied upon by both the parties cited supra, I find that as per the Product Supply Agreement dated 06.06.2005 between the appellant and M/s Praxair India Pvt. Ltd., the appellant is required to lift the particular quantity of gases and in the event of any failure on the part of the appellant to take products mentioned in Article 8.1, the appellant will be required to pay MTOP charges paid towards non-lifting of gases on which the Service Tax has been paid by the seller. Further, I find that in the present case, MTOP charges are for the purpose of non-lifting of the goods and it is a fact that the goods have not been lifted by the ....