Gulf Oil Corporation Ltd Vs C.C.E. & S.T. (CESTAT Ahmedabad)
CESTAT find that the cenvat credit was denied to appellant on the ground that service being classifiable under Sponsorship Service, the appellant was supposed to discharge the service tax under GR-7 Challan. We find that the service provider M/s. K.P.H. Dream Cricket Pvt. Ltd. has classified the service under Business Auxiliary Service, in such case it is the service provider who is suppose to pay the service tax and the appellant can take the cenvat credit only on the basis of invoice issued by the service provider. The entire basis of the department’s case is dispute on the classification made by the service provider M/s. K.P.H. Dream Cricket Pvt. Ltd. We find that M/s. K.P.H. Dream Cricket Pvt. Ltd. has classified the service under Business Auxiliary Service and discharged the service tax and issued the invoice. Firstly, the classification of service cannot be disputed at the recipient end secondly, the classification of service maintained by the service provider M/s. K.P.H. Dream Cricket Pvt. Ltd. has been considered in judgment of COCA COLA INDIA PVT. LTD. reported at 2015 (38) STR 497.
From the above judgment, it can be seen that the only difference is that in the present case the cenvat credit was denied on the same ground on which the service tax was demanded in the above case. The dispute was same that the service falls under Sponsorship Service however, the tribunal in the case of COCA COLA INDIA PVT. LTD. (supra) held that at the recipient’s end the classification cannot be changed. Following the said judgment in the present case, we are of the considered view that since the classification of service cannot be challenged at the recipient’s end, the cenvat credit availed by them cannot be disputed.
FULL TEXT OF THE CESTAT AHMEDABAD ORDER
The brief facts of the case are that during the course of audit conducted by the Central Excise Department, it was noticed by the audit party that the appellant has availed credit of Rs.1905500/- on the invoice issued by M/s. K.P.H. Dream Cricket Pvt. Ltd. (KPH) for promotion of the product of the appellant such as logo, trademark, products manufactured by the appellant. The service provider M/s. KPH has discharged the service tax and issued the invoice.
2. The case of the department is that the service is correctly classifiable under Sponsorship Service according to which the service recipient is required to pay the service tax in terms of Rule 2(1)(d)(iv) of Service Tax Rules, 1994 therefore, the service tax under the head of Business Auxiliary Service by the service provider is incorrect and consequentially the appellant is not entitled for the cenvat credit.
3. Shri Anandodaya Mishra, Learned counsel appearing on behalf of the appellant submits that since service provider has paid the service tax under Business Auxiliary Service and the same has not been challenged by the department neither classification can be disputed at the recipient end nor the cenvat can be denied on the charge that due to service classifiable under Sponsorship Service since the appellant is liable to pay the service tax, credit is not available. He placed reliance on the following judgments:
