The second objection of the department is that the appellant do not satisfy the conditions no. 2(e) of 12/05 ST regarding non-availment of cenvat credit. The appellant’s plea from the very beginning has been that they have never availed cenvat credit either in respect of inputs or input services and that they have been claiming filing only the rebate in respect of input/input services from time to time and that in the ST-3 Return for October 2010 – March, 2011 the rebate claim had been mentioned as cenvat credit availed by mistake.
The Notification in question clearly requires an assessee to file refund claim on quarterly basis within a period of 60 days from the end of relevant quarter during which the goods stands exported. Such period prescribed by the notification cannot be extended by courts working within the parameters of the excise laws.
Appellant had supplied the tool kit as per statutory requirements under Central Motor Vehicle Rules, 1989 as accessories to be used in relation to the manufacture of vehicle. Thus, ‘tool kit’ in our view is squarely covered by the definition of ‘input’ given under Rule 2(k)(i) of Cenvat Credit Rules and that the appellant had rightly availed the Cenvat credit in relation to tool kits. I
So far as the cross-objection of the respondent assessee is concerned, we do not find merit on valuation issue when discussion made by the ld. Commissioner (Appeals) in para 6.2 is read. The respondent assessee claims cum-tax benefit. This point does not need further consideration at this stage for no evidence led to show that the gross value was inclusive of service tax. So far as the taxability is concerned that was not before ld. Commissioner (Appeals). Such issue not been raised nor decided no pleading at this stage is entertainable in second appeal. Cross-objection is dismissed accordingly.
If any of the part of the advance attributable to taxable service and that did not form part of returns filed subsequently that amount shall be brought to tax without escapement. Law does not permit postponement of liability because of specific provision under section 67(3) of the Finance Act.
We are unable to find from the orders of the authorities below as to the manner how the appellant has failed to get benefit of Notification No. 32/2004-ST, dated 3-12-2004.
The appellant brings out that since the liability is determinable after 18-2-2006, it has discharged tax liability with interest in respect of both the appeals although it sought registration after the impugned period. It was given to understand that the period covered in both the appeals are prior to the delivery of the judgment of Apex Court in the aforesaid citation.
Now the issue to be examined is whether shifting of goods within the factory premises amounts to production or processing of goods for, or on behalf of, the client. Obviously the word production cannot cover shifting of goods.
Certainly the procedure prescribed by rule 4(7) of Cenvat Credit Rules needs interpretation in favour of Revenue. But to the extent service tax is paid in respect of an invoice and in a contingency of retention of part of payment for any dispute on the invoice or any other legal purpose, disallowance of cenvat credit to the extent of tax paid shall cause hardship to the taxpayer.
In the case of Kushboo Plastics (P.) Ltd. v. CCE 2002 (149) ELT 694 (Tri.-Delhi), it was held that credit is admissible on the basis of invoices issued by the consignment agent who are registered as a dealer. Clarification issued by the Jaipur Commissionerate, which was based on the Chief Commissioner’s letter dated 26.5.2000 was taken into consideration.
