Lohia Corp Limited vs C.C. C.Ex. & S.Tax, Kanpur

Arising out of the order in appeal No.41/ST/APPL/KNP/2013 dated 30.10.2013 passed by the Commissioner , Customs ,Central Excise & Service Tax (Appeals), Kanpur.

For approval and signature:

Honble Mr. Justice G. Raghuram, President

1 Whether Press Reporter may be allowed to see the Order for publication as per Rule 26 of the CESTAT (Procedure) Rules, 1982?

2 Whether it should be released under Rule 26 of 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?

Lohia Corp Limited  Appellant

Vs.

C.C. C.Ex. & S.Tax, Kanpur . Respondent

Appearance:

Present Ms. Vishakha Chaudhary, C.A. with Shri Md. Suhail, for the appellant

Present Mrs. Suchitra Sharma, A.R. for Respondent/Revenue

Coram: Honble Mr. Justice G. Raghuram, President

Final Order No. 51680/2015

Per Justice G. Raghuram:

The appellant is the assessee. The appeal is preferred against the order dated 30.10.2013 passed by ld. Commissioner(Appeals), Customs, Central Excise & Service Tax, Kanpur. The ld. Appellate Commissioner allowed the appeal preferred by Revenue against the primary adjudication order dated 12.12.2012 passed by the Additional Commissioner, Central Excise, Kanpur whereby the primary authority accepted the claim of availment of Cenvat Credit of Rs.9,10,307/- on rent-a-cab service which was utilized for the assessees business of manufacture of machine and machine parts. The cab service was utilized for transportation of assessees employees from the respective residences to the assessees factory and back.

2. The ld. Appellate Commissioner, despite assessees reference and reliance upon several decisions of the Tribunal and of the Bombay and the Karnataka High Courts, including the direct decision of the Karnataka High Court in Commissioner of C.Ex., Bangalore III vs. Tata Auto Comp Systems Ltd.  2012 (277) ELT 315 (Kar.), which binding precedent clearly ruled that transportation service provided in the factory of assessee for pick up and drop from employees residences to the factory, is an input service, in or in relation to manufacture, whether directly or indirectly of the final products within the meaning and comprehension of Rule 2(l) of Cenvat Credit Rules, 2004 and therefore was available as credit in terms of Rule 3 read with Rule 2(l) and Rule 9 of the Rules, on specious reasons allowed Revenues appeal and reversed the order of the primary authority.

3. On considered view of this Tribunal, the order of the lower appellate authority is perverse and a clear instance of judicial indiscipline. I record disapprobation of such quasi-judicial misconduct. Since the issue is covered in favour of the assessee and against Revenue, by the decision of this Tribunal in Stanzen Toyotetsu India Pvt. Ltd. vs. C.C.E.  2009 (14) STR 316 (Tri-Bang.), which decision stands approved by the decision of the Karnataka High Court in Tata Auto Comp Systems Ltd. (supra), the appeal is allowed. No Costs however.

(Justice G. Raghuram)

President

scd/

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