TaxTMI 
TaxTMI 
2023 (4) TMI 1012
X X X X Extracts X X X X
X X X X Extracts X X X X
....s. One Crore sixty nine lakh five thousand three hundred seventy eight only) to M/s Trinetra Cement Ltd. (Now known M/s India Cement Ltd) Village - Vajwana, Distt. - Banswara. (ii) I disallow Cenvat credit of Rs. 50,37,075/- (Rs. Fifty lakh thirty seven thousand seventy five only) and order it to be recovered from M/s Trinetra Cement Ltd (Now known M/s India Cement Ltd) Village - Vajwana, Distt. - Banswara under Rule 14 (1) (ii) of the Cenvat Credit Rules, 2004 read with provisions of Section 11A (1) of Central Excise Act, 1944 and Section 174 of the Central Goods and Service Tax Act, 2017. (iii) I order to recover the interest at applicable rates on Rs. 50,37,075/- [from M/s Trinetra Cement Ltd (Now known M/s India Cement Ltd) Village - Vajwana, Distt. - Banswara under Rule 14 of the Cenvat Credit Rules, 2004 read with Section 11AA of Central Excise Act, 1944. (iv) I impose penalty of Rs. 5,00,000/- (Rs. Five lakh only) under Rule 15 (1) of Cenvat Credit Rules, 2004 read with Section 11AC (1) (a) of Central Excise Act 1944 on M/s Trinetra Cement Ltd (now known M/s India Cement Ltd) Village - Vajwana, Distt. - Banswara. (v) the above order is pas....
X X X X Extracts X X X X
X X X X Extracts X X X X
....d office in Gujarat and not to the appellant in Rajasthan. According to the learned counsel, once an ISD invoice is issued in its favour, the appellant is entitled to CENVAT credit and the eligibility of the CENVAT credit on the service cannot be questioned at the end of the appellant. Further, according to the learned counsel, since the Commissioner had jurisdiction over Rajasthan where the appellant is located and had no jurisdiction over Gujarat where its head office is located, the Commissioner had no jurisdiction in the matter. Learned counsel relied on the following case laws: 1. Commissioner of Central Excise versus MDS Switchgear Ltd. [2008(229) ELT 485 (SC)] 2. Commissioner of Service Tax versus Godfrey Philips Ltd. [2009(239) ELT 322 (Tri-Ahmd)] 5. Learned authorised representative for the Revenue asserts that the Commissioner indeed have jurisdiction and has correctly issued the SCN to deny the CENVAT credit to the appellant as the appellant was within his jurisdiction. According to learned authorised representative, irregularly availed CENVAT credit can be recovered under Rule 14 of the CCR and this Rule does not distinguish the type of document on ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... on inputs or service tax paid on input services which can be used by the manufacturer assessee to pay the Central Excise duty on the goods manufactured by it. Thus, every rupee availed as CENVAT credit and utilized reduces the liability of the assessee to pay duty in cash by one rupee. Therefore, it is essential that CENVAT credit is taken as per the Rules. If CENVAT credit is irregularly availed, it can be recovered under Rule 14 of CCR and penalty can be imposed under Rule 15. While Rule 14 of CCR provides for recovery of irregularly availed CENVAT credit, it does not lay down a mechanism for such recovery but instead made the provisions of section 11A of the Central Excise Act, 1944 (which deals with recovery of duty) applicable mutatis mutandis. Rules 14 and 15 of CCR read as follows: RULE 14. Recovery of CENVAT credit wrongly taken or erroneously refunded. - (1) (i) Where the CENVAT credit has been taken wrongly but not utilised, the same shall be recovered from the manufacturer or the provider of output service, as the case may be, and the provisions of section 11A of the Excise Act or section 73 of the Finance Act, 1994 (32 of 1994), as the case may be, shall apply....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... counsel, the Department issued a SCN to the assessee seeking to change the assessable value and consequently, the duty of its supplier and thereby, restrict the MODVAT credit taken by the assessee. The demand was confirmed by the Commissioner but it was set aside by the Tribunal which decision was upheld by the Supreme Court. However, the ISD invoices stand on a different footing and no duty is assessed by the jurisdictional officer of ISD as it neither pays any excise duty or service tax nor does it avail and utilize the benefit of the CENVAT credit but merely passes the credit of service tax paid by the service providers to its units which avail CENVAT credit and use it. These units file returns which show, among other things, the CENVAT credit availed. The jurisdictional officers have to scrutinize and assess them and if any CENVAT credit is irregularly availed on the strength of invoices (including ISD invoices), it can be recovered under Rule 14 of CCR from them. The case laws relied upon by the learned counsel deal with situations where the jurisdictional officer of the assessee who used the CENVAT credit wanted to reassess the duty paid by the manufacturer of the goods. ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e, the advertisement expenses incurred on the advertisement of this brand do not qualify as 'input service' and hence no CENVAT credit is admissible. 15. According to the learned counsel for the assessee, although Coromandel brand belonged to India Cement-its parent company, it was licenced to use this brand and accordingly it manufactured and sold cement under this brand and incurred the expenses on the advertisements. It is also the contention of the learned counsel that although the assessee merged with its parent company, India Cements by order dated 290.4.2017, it came into force from 1.1.2014, the appointed date and therefore, during the relevant period, the assessee should be treated as India Cements and therefore, Coromandel should be treated as its own brand. 16. We have considered the submissions on this issue. A plain reading of Rule 2(l) of CCR allows credit of advertising expenses and it does not place on any restrictions on what type of advertising qualifies for CENVAT credit. So long as the advertisement is for the excisable goods sold or the taxable services rendered, there can be no restriction on availing the CENVAT credit. In particular, there is no conditi....
X X X X Extracts X X X X
X X X X Extracts X X X X
....issue in paragraph 45.1 of the impugned order. He affirmed the demand and held that the entire amount of CENVAT credit was mentioned in the SCN as Business Auxiliary Services and therefore, the appellant's contention that it was only for restaurant or hotel services is not correct. 20. A perusal of the impugned order shows that this contention of the learned counsel made before the Commissioner was examined by him in paragraph 45.1 of the order. The relevant portion of this order reads as follows: "..I find that in the Show cause notice cenvat credit of Rs. 31,96,936/- is shown in the head of Business Auxiliary Services(Restaurant/Hotel services). The assessee has submitted two Annexures- one for credit of Rs. 1,21,488/- and another for credit of Rs. 31,96,936/- containing invoice wise details and credit availed thereon. In both the annexures, service category is mentioned as 'BAS'. In the show cause notice also Cenvat credit of Rs.31,96,936/- is shown in the head of Business Auxiliary services (Restaurant/Hotel services), therefore, assessee's argument that in SCN amount is only show in Restaurant/Hotel services is not correct. On perusal and scrutiny of the c....
X X X X Extracts X X X X
X X X X Extracts X X X X
....lowed as admissible credit in view of exclusion provided in clause (A) in the definition of input services, viz., (A) Service portion in the execution of a works contract and construction services ....... ..... I, therefore hold that the aforesaid expenses incurred by them are not covered in the definition of input services as the same were not used directly or indirectly, in or in relation to the manufacture of the final products and clearance of final products up to the place of removal and therefore I disallow the cenvat credit of Rs. 31,96,936/- availed by the assessee for miscellaneous services claimed by them under the Business Auxiliary Services. 21. We have considered the submissions of the learned counsel for the appellant and the detailed reasoning for denial of credit given by the adjudicating authority. CENVAT credit has to be allowed only if the excise duty paid on the inputs and service tax paid on the input services used in or in relation to the manufacture of the final products. The law does not permit CENVAT credit of any service tax paid on any bill for any service availed in the course of business. If such was the intention of the la....
X X X X Extracts X X X X
X X X X Extracts X X X X
....T 20474] ii) Commissioner vs. Samsung India Electronic Pvt. Ltd. [2015 SCC Online 3617] iii) Ocean connect India Pvt. Ltd. vs Commissioner [2016 SCC Online CESTAT 7379] 24. Learned authorised representative for the Revenue supports the impugned order and reiterates its findings. 25. We find that that these services were availed, as recorded in the impugned order, to arrange annual award and other functions/ programmes for the dealers. However, the Commissioner denied CENVAT credit that the invoices did not mention what event was being organized. 26. When one hires a service provider, he may not always indicate in detail the programme which is being organized. Instead, he indicates the services which he provided and the name of the client. In our considered view, the services rendered towards the annual awards or other programmes for the dealers have a direct nexus to sales promotion and CENVAT credit is admissible on such services. Accordingly, we allow CENVAT credit of Rs. 34,800/- availed by the appellant on these services. Mandap keeper services 27. Learned counsel for the appellant submits that the CENVAT credit on mandap keeper services was ava....