Commissioner Of Central Excise vs M/S. Minda Acounties Ltd

[Arising out of Order-In-Appeal No. 166/SVS/GGN/2013 dated 18.3.2013 passed by Commissioner of Central Excise (Appeals), Delhi III, Gurgaon (Haryana) ]

For approval and signature:

Honble Mr Ashok Jindal, Member (Judicial)

1 Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?

2 Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?

3 Whether Their Lordships wish to see the fair copy of the Order?

4 Whether Order is to be circulated to the Departmental authorities?

Commissioner of Central Excise Appellants

Delhi III

Vs.

M/s. Minda Acounties Ltd. Respondent

Appearance:

Shri A K Dhawan, AR for the Appellants

Shri Kulbhushan Sharma, Advocate for the Respondent

CORAM:

Hon'ble Shri Ashok Jindal, Member (Judicial)

Date of Hearing /decision: 16.1.2015

FINAL ORDER NO. A/50107 /2015-Ex(SM)

Per Ashok Jindal :

Revenue is in appeal against the impugned order where the refund claim under Rule 5 of Cenvat credit Rules 2004 has been allowed by the learned Commissioner (Appeals).

2. Brief facts of the case are that respondent is manufacturing excisable goods and said goods had been exported by the respondent. During the course of manufacturing, they have taken certain services, namely, business support service and infrastructure support service which remained unutilized. Therefore, they filed a refund claim under Rule 5 of the Cenvat Credit Rules, 2004. A show cause notice was issued to deny the said refund claim on the premise that services which have been availed by the respondent has no nexus to their manufacturing activity. On appeal before the Commissioner (Appeals), refund claim was allowed holding that the respondent used these service during the course of their manufacturing, so they are entitled to take Cenvat credit on these services, as these services remain unutilized, they are entitled to Cenvat credit under Rule 5 of the Cenvat Credit Rules, 2004. Against that order, Revenue is in appeal.

3. Learned AR submits that in this case, the services availed by the respondents have no nexus to the activity of manufacturing and from the notice it is no coming out what services they have availed.

4. On the other hand, authorised representative appearing on behalf of the respondents submits that services availed by them as a manufacturer in the course of their business , therefore, they are entitled to take Cenvat credit. Further, it is submitted that Cenvat credit taken remained unutilized as they are exporter of the excisable goods, therefore they filed the refund claim under Rule 5 of the Cenvat Credit Rules, 2004 and they are entitled for the refund of the same. In these circumstances, it is prayed that the impugned order is to be upheld, appeal filed by the Revenue is to be dismissed.

5. Heard the parties. Considered the submissions.

6. The only reason for filing the appeal by the Revenue is that these services have no nexus with the manufacturing activity of the respondent. Admittedly, these services have been availed by the respondent during the course of their business of manufacturing of excisable goods which ultimately were exported by the respondents. As held by the Honble High Court of Bombay in the case of Ultratech Cement Ltd. [2010 (260) ELT 369(Bom)], if the assessee availed any services in the course of business of manufacturing, the assessee is entitled to take Cenvat credit. Therefore, I hold that the respondents are entitled to take Cenvat credit. Further, the learned AR raised the issue that notice does not show which service has been availed by them but no notice has been produced by the Revenue before me for examination. Therefore I hold that the objection raised by learned AR is vague only. In these circumstances, I do not find any infirmity in the impugned order. Same is upheld. Appeal filed by the Revenue is dismissed.

(dictated and pronounced in the open court )

( Ashok Jindal ) Member(Judicial)

ss

??

??

??

??

2