Commissioner Of Central ... vs Nutrine Confectionery Co Ltd

[Arising out of Order-in-Appeal No. 24-2007 -T- ST dated 24/10/2007 passed by CCE(Appeals), Guntur]

For approval and signature:

HON'BLE SHRI B.S.V.MURTHY, TECHNICAL MEMBER

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,Customs & Service Tax TIRUPATI NULL 9/86-A...BEHIND WEST CHURCH COMPOUND, AMARAVATHI NAGAR, M.R.PALLI, - 517502 AP Appellant(s)

Versus

NUTRINE CONFECTIONERY CO LTD PALAMENUR ROAD, CHITTOOR (A.p) Respondent(s)

Appearance:

Shri R. Gurunathan, Addl. Commissioner(AR) For the Appellant

Shri B. Venugopal, Advocate For the Respondent

Date of Hearing: 19/03/2015

Date of Decision: 19/03/2015

CORAM:

HON'BLE SHRI B.S.V.MURTHY, TECHNICAL MEMBER

Final Order No. 20801 / 2015

Per : B.S.V. MURTHY

The issue involved is eligibility of the appellants for CENVAT credit of service tax paid on C&F agent service, commission agent service and erection, installation and commissioning service.

2. As regards C&F agent service, the learned counsel submits that this issue as well as the issue relating to service tax paid on commission agent service came up before this Tribunal and this Tribunal vide order as reported at 2014-TIOL-2522-CESTAT-BANG decided that appellant is eligible for CENVAT credit in respect of C&F agent service received by them but in respect of commission agent service, it was held that appellant is not eligible. Since the issues are covered by the precedent decision of the Tribunal and both sides agree. By following the precedent decision, the service tax credit taken by the appellant in respect of C&F agent service is held as correctly taken and the demand is set aside. As regards the commission agent, the credit is held inadmissible and payable if already taken with interest. Since till the decision of the Honble High Court of Gujarat rendered in the case of Cadila Health Care Ltd. [2013-TIOL-12-HC-AHM-ST], there were decisions taking a view that credit is admissible, I consider that penalty need not be imposed in this case. As regards the amount of Rs.76,000/- taken as CENVAT credit on erection, installation and commissioning service, the grievance of the Revenue is only that the Commissioner has not recorded any discussion and simply concluded that appellant is eligible. I find this grievance to be valid.

3. In view of the above discussion, the credit taken on C&F agent service is held eligible, credit taken in respect of commission agent is held as not correct and the demand for the credit with interest is upheld. As regards the 3rd item, erection, installation and commissioning service, the matter is remanded to the Commissioner(Appeals) to discuss the issue properly and thoroughly and pass a well reasoned order. The appeal is decided in above manner.

(Order pronounced and dictated in open court)

B.S.V.MURTHY TECHNICAL MEMBER

Raja.

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