Ge India Industrial Pvt Ltd vs Commissioner Of Central Excise, ...

[Arising out of Order-in-Appeal No. 370/2011-CE dated 29/11/2011 passed by the Commissioner of Central Excise (Appeals-I), Bangalore.]

For approval and signature:

HON'BLE SMT. ARCHANA WADHWA, JUDICIAL MEMBER

1 Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982? No 2 Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not? No 3 Whether Their Lordships wish to see the fair copy of the Order? Seen 4 Whether Order is to be circulated to the Departmental authorities? Yes

GE INDIA INDUSTRIAL PVT LTD PLOT NO.42/1 & 45/14, ELECTRONIC CITY PHASE II, BANGALORE 560 100 Appellant(s)

Versus

Commissioner of Central Excise, Customs and Service Tax BANGALORE-I POST BOX NO 5400, CR BUILDINGS, BANGALORE  560 001. KARNATAKA Respondent(s)

Appearance:

Mr. S.RAMASUBRAMANIAN, CA MSSV & CO. 63/2,2ND FLOOR, (ABOVE CANARA BANK) RAILWAY PARALLAL ROAD, KUMARA PARK WEST, BANGALORE - 560020 KARNATAKA For the Appellant

Mr. S. Teli, Dy. Commissioner (AR) For the Respondent

Date of Hearing: 19/06/2015

Date of Decision:25/06/2015

CORAM:

HON'BLE SMT. ARCHANA WADHWA, JUDICIAL MEMBER

Final Order No. 21408 / 2015

Per : ARCHANA WADHWA

The appeal is in respect of an amount of Rs.4,03,705/- demanded towards service tax and education cesses for the period from May 2006 to March 2008. On a perusal of records, I find that CENVAT credit to the aforesaid extent taken on numerous input services claimed to have been used in or in relation to the manufacture of excisable products in the appellants factory at Electronic City has been denied to them on the ground that the relevant invoices were not addressed to the factory but addressed only to their Head Office situate at Ulsoor. The learned counsel submits that it is not the Departments case that the input services were not received in the factory, nor is it their case that such services did not qualify to be input services. It is submitted that the lower authorities have denied CENVAT credit to the appellant even on input services such as consulting engineer service, audit service, technical inspection and testing service etc. which were indisputably connected with the manufacturing activity. The learned counsel has also pleaded limitation against the impugned demand, submitting that the authorities, having dropped penalty under Rule 15(2) of the CENVAT Credit Rules, 2004, should not have invoked Rule 14 read with the proviso to Section 11A(1) of the Central Excise Act inasmuch as the ground for the said penalty as laid down under rule 15(2) was identical to the ground for invoking the larger period of limitation under the said proviso.

2. The learned Dy. Commissioner (AR) submits that the assessee had, all along, been claiming that the input services were received in the factory but did not prove this claim in respect of some of the input services. Though the original authority confirmed demand against the assessee in respect of such input services on the ground that these services were not received in the factory, they did not raise before the appellate authority any grievance to the effect that the finding of the lower authority was beyond the scope of the show-cause notice. The learned Dy. Commissioner (AR) has also reiterated other relevant findings recorded in the impugned order.

3. After hearing both the sides, I find that there are umpteen number of decisions of the Tribunal laying down that the effect of invoices being in the name of Head Office cannot be adopted as a ground for denial of the credit if the input or input services stand received in the appellants factory and stand utilized for the manufacture of the excisable goods or for providing of output services. In this connection, reference can be made to the Tribunals decision in the case of Anand Nishikawa Co. Ltd. vs. CCE, Chandigarh: 2014 (34) S.T.R. 751 (Tri.-Del.); Parekh Plast (India) Pvt. Ltd. vs. CCE, Vapi: 2012 (25) S.T.R. 46 (Tri.-Ahmd.) and Durferrit Asea Pvt. Ltd. vs. CCE, Guntur: 2011 (22) S.T.R. 583 (Tri.-Bang.). Otherwise also, I find that most of the services stand covered by the definition of input services, in terms of various precedent decisions. However, the fact that whether the said services were actually received in the factory and were utilized for the output services or utilized for manufacture of excisable goods is required to be verified, which can only be done at the level of original adjudicating authority.

4. In view of the above, I set aside he impugned order and remand the matter to the original adjudicating authority for doing the needful and to re-decide the issue in the light of declaration of law by various judicial decisions. The issue of limitation is also being kept open for the adjudicating authority to decide the same afresh in the de novo proceedings.

Appeal is thus allowed by way of remand.

(Order pronounced in open court on 25/06/2015)

ARCHANA WADHWA JUDICIAL MEMBER rv 4 1