CESTAT, AHMEDABAD BENCH
Commissioner of Central Excise, Surat
FINAL ORDER NO. A/789/2012-WZB/AHD
Appeal No. ST/222 OF 2010
JUNE 1, 2012
1. This appeal is filed by the Revenue against the order in appeal No. RKA/109/SRT-I/2010, dated 17-2-2010.
2. The issue involved in this use is regarding eligibility of the respondent for availment of Cenvat credit of the duty paid on the Air-compressors purchased by them and received in the factory premises on 5-5-2005. The adjudicating authority has held that the Air-compressors which are purchased and received by the appellant for providing output service “Commercial and Industrial Construction Services (Pipeline Services)” and the said services were brought into the tax net from 16-6-2005. The adjudicating authority has held that the Cenvat credit could not be availed on duty paid on such Air-compressors though it is capital goods as the said capital goods were received in the premises of the service provider i.e. respondent before the services were taxable under the Finance Act, 1994. Aggrieved by such an order, the respondent preferred appeal before the first appellate authority. The first appellate authority, after considering the submissions has set aside the order-in-original and held in favour of the assessee. Hence this appeal by the Revenue.
3. Heard both sides and perused the record.
4. The undisputed fact is that the assessee has received the Air-compressors on 5-5-2005. It is also undisputed that the said Air-compressors were to be utilised by the assessee for providing output service of laying of long distance pipe line covered under the category of “Commercial and Industrial Construction Services”, which came into tax net with effect from 16-6-2005.
5. The learned counsel would rely upon the Hon’ble Gujarat High Court judgment in the case of CCE&C v. Gujarat Propack 2009 (234) ELT 409. On perusal of the said judgment, it is seen that the Hon’ble High Court has specifically considered the facts of the case wherein the facts were in respect of the reversal of the Cenvat credit availed by the appellant was sought to be recovered by issuance of show cause notice. The facts in that case which has been indicated by their Lordships in paragraph-2 of their judgment are totally different from the facts in the current case before me. Hence the reliance placed by the learned counsel on the case of Hon’ble Gujarat High Court will not carry his case any further.
6. I find that an identical issue in respect of the capital goods received for the manufacturing of final products which were exempted, was being heard and the eligibility for availing the credit was decided by the Larger Bench of the Tribunal in the case of Spenta International Ltd. v. CCE 2007 (216) ELT 133 (Tri. – Mum.). The ratio of the said judgment is clearly recorded in paragraph 10, which is reproduced as under :-
In the light of the above discussion, we answer the “10. reference by holding that Cenvat credit eligibility is to be determined with reference to the dutiability of the final product on the date of receipt of capital goods.”
7. The learned counsel would try to distinguish the said judgment by stating that the judgment was in respect of the capital goods which were used and which required installation during the relevant period. I find that such distinguishing factor will not carry the case of the assessee any further, inasmuch as the facts in this case are not disputed which indicates that such capital goods can be utilised by the assessee only for the services to be rendered which came into service tax net from 16-6-2005. If that be so, I am bound by the judgment and ratio of which has been reproduced hereinabove. Accordingly, I do find merits in the appeal filed by the Revenue and set aside the impugned order and allow the appeal filed by the Revenue.