There is no dispute about the fact that the appellant has taken CENVAT credit of the duty paid by them. Whether the duty is paid rightly or wrongly, is not the concern of the appellant who is only a recipient of the goods/service. So long as duty is paid either on the goods or the service, appellant is rightly entitled for the credit. This Tribunal in their own case for the previous period has allowed such credit. There is nothing on record to show that the department has appealed against that order of the Tribunal. In view of the position, I allow the appeal with consequential relief, if any.
The short question for consideration in this case is which is the place of removal in respect of exports? Is it the factory premises or is it the port of shipment? In the case under consideration, the appellant has availed service tax credit on GTA service, which was utilised for transportation of goods from the factory to the port of shipment.
The appellant/assessee herein filed a refund application with the authorities on the ground that the service tax paid by them should not have been paid. The adjudicating authority after following the Principles of natural justice, rejected the refund claim on various grounds, including the ground of unjust enrichment.
The appellant/assessee availed the benefit under the Works Contracts Composition Scheme in respect of contracts entered into prior to 1-6-2007. The respondent/department issued show cause notice proposing service tax, interest and penalty on the ground that the petitioner was not eligible to avail the benefit under the Composition Scheme. Being aggrieved, the petitioner went in appeal under Section 35B of the Central Excise Act, 1944 (the Act).
It is seen from the records that the first appellate authority has rejected the appeal filed by the appellant on the question of limitation. It is undisputed that the appellant had received the order in original on 28.8.2010 and the appellant had a right to file an appeal within three months from the date of receipt of the order and he also gets further period of three months for seeking condonation of delay from the first appellate authority.
The appellant/assessee provided services of Authorized Service Station and Business Auxiliary Services. They had acted as agent for promoting vehicle loans for which the Bank paid them commission. Out of the commission paid by the Bank, they were in fact paying some amount to the loan seekers as an incentive for taking the loan through them.
Question involved in the appeal is whether the duty paid by the job worker on goods, received back by the appellant can be availed as Cenvat credit by the appellant. I find that the issue involved in the appeal is clearly covered by the decision of Hon’ble Bombay High court in the case of Nestle India Ltd. (supra). Once the duty has been paid by job worker on goods sent back to appellant, there is no reason to deny benefit of Cenvat credit to the appellant.
As soon as the registration certificate has been surrendered by appellant, duty is cast on the department to verify whether the appellant has rightly gone out of the ambit of service tax or not. The department has not done this exercise within one year of the surrender of the registration certificate.The matter is sent back to the adjudicating authority to requantify the demand pertaining to normal period and to give the benefit of input service credit for normal period after due verification of the documents produced by the appellant in support of their claim. As extended period is not invocable, penalty under Section 78 is waived. The penalty under Section 77 is confirmed to the extent of Rs. 1000/-.
In view of the decision taken by this Tribunal in the case of Ramdev Food Products Pvt. Ltd vide Order Nos. A/745-746/WZB/AHD/2011, dated 22-3-2011 [2011 (23) S.T.R. 475 (Tri. – Ahmd.)], that port services rendered even without authorization of port, Service Tax credit will be available, respondents are eligible for the Service “tax credit and the decision of the Commissioner (Appeals) has to be upheld.
Since the appellant is not providing output services as categorized in Rule 2(p) of the Cenvat Credit Rules, 2004, debiting the said amount in the Cenvat account needs to be rectified by directing the appellant to debit or pay the entire amount invoked in both the appeals as service tax paid for receipt GTA services through PLA or by TR-6 challan.
