Case Law Details
CENVAT credit is allowed to the assessee,even if the assessee was not registered during relevant time.
It is settled law that the dutiability of the final products or inputs, the benefit of cenvat credit in respect of inputs and input services is made available, provided the assessee has necessary documentary evidence and necessary evidence to show utilisation of such input services and in this case, there is no finding that input services were not utilised in providing output services, for which service tax has been paid. In view of the several Tribunal decisions cited, which I find that are applicable to the facts of the case, I find that appellant prima facie made out a case for grant of stay. Accordingly, the requirement of pre-deposit of amounts demanded is waived and stay against recovery of the same is granted during the pendency of appeal. (para 3)
CUSTOMS EXCISE & SERVICE TAX APPELLATE TRIBUNAL,
West Zonal Bench, Ahmedabad
COURT
Application No. – ST/S/674-675 of 2011
Appeal No. – ST/332 & 333 of 2011
Arising out of – OIA No. 22 to 23/2011/Commr(A)/CMC/Raj dt. 14.02.2011
Passed by – Commr. (Appeals) C.Excise. & Cus Rajkot
M/s. Reliance Ports & Terminals Limited
Vs.
Commissioner of Central Excise, Rajkot
CORAM :
Hon’ble Mr. B.S.V. Murthy, Member (Technical)
Date of Hearing : 11.08.2011 Date of Decision : 11.08.2011
ORDER No. S/1123-1124/WZB/AHD/2011
Per Mr. B.S.V. Murthy;
In both the appeals, cenvat credit of service tax paid on input services have been denied to the appellants on the ground that invoice is only evidence of proof of payment of service tax, were dated prior to registration taken by the appellant i.e. 11.10.2004.
2. Learned counsel submits that the appellants are engaged in providing construction service which was introduced on 10.09.2004. Appellants took registration on 11.10.2004 and even in respect of the constructions which were in progress and part completed as on 10.09.2004, the appellants paid full service tax. However, they also took cenvat credit in respect of the input services used by them for providing the services. He submits that department has denied cenvat credit on these input services on the ground that the input services invoices related to the period prior to 11.10.2004. He relied upon following decisions of the Tribunal to submit that registration is not necessary for availing cenvat credit. If the output service is taxable and tax has been paid prior to this date. The decisions are as under :
(a) Sutham Nylocots vs. CCE Coimbatore – 2005(188) ELT 26 (Tri.Chennai)
(b) Well known Polyesters Limited vs. CCE, Vapi – 2011-TIOL-989- CESTAT-AHM.
(c) Amar Remedies vs. CCE, Surat – 2010 (257) ELT 552 (Tri. Ahmd)
(d) CCE, Ahmd vs. Fine Care Bio-systems – 2009 (244) ELT 372 (Tri. AHmd.)
3. I have considered the submissions. I find that the only ground taken by the Revenue for refusing cenvat credit is that the same was taken prior to the date of registration. The decisions cited by the learned counsel take a view that credit can be taken even when the unit was not registered. It is settled law that the dutiability of the final products or inputs, the benefit of cenvat credit in respect of inputs and input services is made available, provided the assessee has necessary documentary evidence and necessary evidence to show utilisation of such input services and in this case, there is no finding that input services were not utilised in providing output services, for which service tax has been paid. In view of the several Tribunal decisions cited, which I find that are applicable to the facts of the case, I find that appellant prima facie made out a case for grant of stay. Accordingly, the requirement of pre-deposit of amounts demanded is waived and stay against recovery of the same is granted during the pendency of appeal.
(Dictated and pronounced in the Court)
