TaxTMI 
TaxTMI 
2019 (10) TMI 167
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....5 & March 2015 to October 2015 Rs. 4,10,555/- Rs. 41,045/- E/21179/2018 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 confi....
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....that rules entitled the recipient manufacturer to avail the benefit of the duty paid by the 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 (2....
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....ider are recorded in the books of accounts. The particulars of CENVAT credit taken on input services have been recorded in the CENVAT credit registers indicating the details of service provider/supplier, number & date of invoice, amount 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, ....
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.... CENVAT credit based on test prescribed in CCR, 2004 and even after gaining eligibility under Rule 2(l) and 2(k) of CCR, 2004 such credit should be listed under Rule 3 of CCR, 2004. He then referred to the decision in the case of Vikram Ispat Vs CCE, Raigad, 2009 (16) STR 195 (Tri. Mumbai) wherein it has been observed as under: "3............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: "I....
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....v. Asstt. Controller of Estate Duty, Ernakulam, AIR 1971 SC 2329; CIT, Gujarat v. Vadilal Lallubhai, AIR 1973 SC 1016, p 1019] or beyond the language of the section by which it is created [refer CIT, Bombay City II v. Shakuntala, AIR 1966 SC 719, p 722]. It cannot also be extended by importing another fiction [refer CIT, (Central) Calcutta v. Moon Mills Ltd., AIR 1966 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....