TaxTMI 
TaxTMI 
2019 (12) TMI 528
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....iled by the grinding unit; (ii) cenvat credit of port service is not available as the Appellant has not explained whether the said input service is in respect of ship or goods. The cenvat credit cannot be availed in respect of final products of grinding unit. The credit availed on port service, wharfage and dredging services is not available as the services was not only used for export of clinker but export of cement by grinding unit and that port is not a registered premises of Appellant ; (iii) credit was availed on Misc Services and the nature of service is not known; cenvat credit of manpower service in respect of Jetty is not available as it has got no connection with the manufacture of final product. (iv) credit on telephone and mobile services is not admissible as it cannot be established that the mobile phone are used for manufacturing operations conducted by clinker unit and the landline phones installed in head office and other places are used in manufacture and clearance of final products of clinker unit; (v) credit on repair and maintenance services received by the appellant would not be admissible (vi) cenvat credit on GTA s....
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....question are common in both units. It is setted by judicial precedents that the services are input services. He relies upon the provisions of Rule 7 of Cenvat Credit Rules, 2004 on manner of distribution of credit by input service distributor and submits that the cenvat credit of input services can be distributed to any of the units of the manufacturer. He relies upon Hon'ble High Court judgment in case of ECOF Industries Pvt. Ltd. 2013 (29) STR 107 (Kar). He also submits that during the impugned period though they were not registered as Input Service Distributor but the substantial benefit cannot be denied on procedural lapse. He places reliance on Hon'ble High Court judgment in case of Dashion Ltd. 2016 (41) STR 884 (GUJ) and Tribunal's order in case of Sun Pharma Medication Pvt. Ltd. 2016 (11) TMI 477 -CESTAT. He further submits that even on same grounds the proceedings against the Appellant were dropped by the Additional Commissioner considering the fact that subsequently the Appellant got registered themselves as Input Service Distributors w.e.f 21.02.2008. The adjudicating authority held that the cenvat credit was available even though relatable to grinding unit and it can be....
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.... service has done for providing adequate draught for ships and other vessels and to maintain shipping channel which is not in relation to manufacture of clinker. The services of mobile and telephone are not established to be in relation to landline phone installed in clinker unit. The mobile phone is in possession of individual working at Ahmedabad office. Thus they are not eligible to avail credit. He relies upon judgment in case of M/s Sintex Ind. Ltd. 2013 (287) ELT 261 (GUJ). 5.1 He further submits that in terms of Rule 7 of Cenvat Credit rules, 2004, the credit cannot be distributed where exempted goods are manufactured. In the present case the cement unit is working under notification No. 39/2001 - CE dt. 31.07.2001 as exempted unit and hence the goods manufactured by Cement unit are exempted. Thus the services utilized by the cement unit cannot be distributed. He relies upon judgment in case of ECOF Industries Pvt. Ltd. 2011 (271) ELT 58 (KAR). That even otherwise also the Appellant have got their Ahmedabad office registered as Input service Distributor w.e.f 21.02.2008 only and prior to this period no credit can be distributed. The invoices were not issued in name of App....
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....not by the unit at Malur. Therefore, the assessee was dealing with the very same product. Rule 7 of the Cenvat Credit Rules governs procedure/manner of distribution of credit by input service distributor by imposing two conditions therein, which are as follows : "a. Credit distributed under the invoice of ISD does not exceed the amount of Service tax paid. b. Credit of Service exclusively used for exempted goods or exempt service is not distributed." 5. Therefore, the assessee is entitled to distribute the Cenvat credit on the input services on its manufacturing unit or other units providing the output services. The view taken in the order in appeal that the distribution of credit is for the advertisement of the product, which is not at all manufactured at Malur Unit, therefore, cannot be accepted. The finding recorded by the Appellate Authority that the assessee is entitled to take credit only in the unit where the product is manufactured is therefore not the mandate of Rule 7 of the Cenvat Credit Rules." 6.2 Coming to the issue that the Appellant at the relevant point of time were not registered as "Input Service Distributor", we are of the view that....
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....nue did not challenged said findings. Further when the grinding unit has surrendered the benefit under Notification No. 39/2001 - CE, there is no reason to deny credit to the Appellant unit in terms of Rule 7 of Cenvat Credit rules, 2004. Our views are also based upon judgment passed by Hon'ble Supreme Court in case of Orissa Cement Ltd. Vs. State of Orissa AIR 1991 SC 1676 wherein the Hon'ble Apex Court held as under : "70. In our view, we need not enter into a discussion on the principles of prospective validation enunciated by at least some of the Judges in Golaknath (supra) as the direction in' India Cement can be supported on another well settled principle applicable in the area of the writ jurisdiction of Courts. We are inclined to accept the view urged on behalf of the State that a finding regarding the invalidity of a levy need not automatically result in a direction for a refund of all collections thereof made earlier. The declaration regarding the invalidity of a provision and the determination of the relief that should be granted in consequence thereof are two different things and, in the latter sphere, the Court has, and must be held to have, a certain amou....
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....facie is too fragile to be considered a relevant criterion for the resulting discrimination. This is one of the reasons why there has been an understandable hesitation on the part of Courts in answering the above question in the affirmative." 6.4 Similarly in case of National Engineering Ind. Ltd. 2015 - TIOL -1976-CESTAT-DEL and ONGC Ltd. 2015 - TIOL-1584-CESTAT-MUM, the tribunal has held that cenvat credit cannot be denied even in absence of head office as Input service Distributor. 6.5 Coming to the dispute as to whether the impugned services would qualify for input credit, we find that the credit has been availed on Advertisement, C & F Agent, Channel subscription, Dealer Commission, Dredging, GTA, Lease Line Rent, Manpower supply, Mobile & Telephone, Operation and Maintenance, Port Service, Power Plant, Repair and Maintenance, Technical Testing and Analysis, Travel Agency, Wharfage, Water treatment Chemical. We find that the issue in no more res-integra in the light of Hon'ble Apex Court judgment in case of Maruti Suzuki Ltd. 2009 (240) ELT 641 (SC) and Hon'ble High Court judgment in case of Ultratech Cement Ltd. 2010 (20) STR 577 (BOM) and M/s Coca Cola India Pvt.....