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/-.
The coffee machine has been maintained by the appellant for vending of coffee to its employees. It is the nature of a catering service provided to the employees which is very essential, especially for the employees working round the clock as in the case of IT companies. Therefore, repair of the coffee vending machine is an input service in or in relation to the output service provided by the appellant and, therefore, they are rightly entitled to the service tax paid on the repair of the coffee vending machine as it is an eligible input service.
The appellants are in appeal along with a stay application directed against order-in-appeal No. PKS/224/BEL/2010 dated 23.07.2010 passed by the Commissioner of Central Excise (Appeals), Mumbai III. The appeal is on the ground that input service credit has been denied to the appellants on the services of travel agent which was used by the appellants for the travelling of the technicians and accountants for visiting to their job workers as per rule 2(l) of the CENVAT Credit Rules, 2004.
In the instant case, the services rendered by the appellant were consumed abroad where the appellant’s clients used the service of inspection/test/analysis to decide whether the goods intended to be imported by them from India conformed to the requisite specifications and standards. In other words, the benefit of the service accrued to the foreign clients outside the Indian territory .
First issue involved in the appeal is whether the Cenvat credit available on raw materials and services used for non-excisable goods is admissible to the appellants. Under the Cenvat Credit Rules, input means all goods used in or in relation to the manufacture of final products whether directly or indirectly and whether contained in the final product or not and Cenvat credit can be availed on the duty paid on any input received in the factory of manufacture of the final product.
Hon’ble Apex court in the case of P.C.PAulose vs. Commissioner of Central Excise & Customs, reported in. In that case the appellant was collecting entry fee at the airport on behalf of Airport Authority of India in terms of a licence agreement entered into between the appellant and the Airport Authority of India Ltd. The issue before the court was whether this activity would amount to a taxable service and the apex court held that the activity would get covered under section 65 clause 105 (zzm) of the Finance Act, 1994.
Brief facts arising for consideration of the case are that the appellant M/s Tata AIG Life Insurance Co. Ltd. are holders of service tax registration under the category of Insurance auxiliary services. The service rendered by insurance agents is covered under the category of insurance auxiliary services. However, the liability to pay service tax on such services is on the recipient of the services, which are the insurance companies who engage the agents as per the provisions of rule 2(1)(d)(iii) of the Service Tax Rules, 1994. It was observed that the appellant had utilized input service tax credit in respect of service tax on insurance auxiliary services. The department was of the view that since the appellant is only a recipient of the service and is not providing any output service, they cannot utilize any input service tax credit for payment of service tax on Insurance auxiliary service.
The combined reading of the Rule 7 and the clarificatory Circular dated 23-8-2007 clearly shows that there are only two restrictions regarding the distribution of the credit. The first restriction is that the credit should not exceed the amount of Service Tax paid. The second restriction is that the credit should not be attributable to services used in manufacture of exempted goods or providing of exempted services. There are no other restrictions under the rules. The restrictions sought to be applied by the Department in this case in limiting the distribution of the Service Tax credit made in respect of the Malur Unit on the ground that the services were used in respect of the Cuttack Unit finds no mention in the relevant rules.
Saraswati Engineering Vs CCCES (Cestat) – If the assessee has discharged the service tax liability on his own ascertainment or on the basis of ascertainment by the Central Excise officers and inform the Central Excise officer of payment of such service tax then, no notice under sub-section (1) in respect of the amount so paid shall be served.
