M/S. Hindustan Zinc Ltd vs C. C.E. Jaipur
- CitationExcise Appeal No. E/1851/2009-E[SM]
Ratio decidendi
The rule this decision rests on
Where the Department denies Cenvat credit on the ground that the services were received before the effective date of the Cenvat Credit Rules, 2004, and it adduces no evidence that the services were completed before that date, while the assessee produces a certificate from the service provider, based on its books of account, stating that the work was completed after the effective date, and that certificate is neither disproved on the record nor its genuineness disputed by the adjudicating or appellate authority, the denial of credit cannot be sustained.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
[Arising out of Order-In-Appeal No. 225(DK) CE/JPR-II/2009 dated 27.03.2009 passed by CCE (Appeals) Jaipur-II]
For approval and signature:
Hon'ble Mr. S.K. Mohanty, 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?
M/s. Hindustan Zinc Ltd. ...Appellant
Vs.
C. C.E. Jaipur Respondent
Appearance:
Mr. Vipul Agarwal, (Advocate) for the Appellant
Mr. R K Mishra, DR for the Respondent
CORAM:
Hon'ble Mr. S.K. Mohanty, Member (Judicial)
Date of Hearing. 15.07.2015
Final Order No. 54100 /2015
Per S K Mohanty:
This appeal is directed against the impugned order dated 27.03.2009 passed by the Commissioner Central Excise (Appeals)-Jaipur-II, wherein cenvat credit of service tax taken by the appellant has been denied on the ground that the services indicated in the invoices were received prior to 10.09.2004, when the Cenvat Credit Rules, 2004 was not in vogue.
2. Sh. Vipul Agarwal, the Ld. Advocate appearing for the appellant submits that with regard to the four numbers of disputed invoices issued by the service provider, M/s Mcnally Bharat Engineering Co. Ltd. were for the period after Cenvat Credit Rules, 2004 was enacted vide Notification No. 23/04 (NT) dated 10.09.2004. The Ld. Advocate further submits that upon verfication of the books of accounts, the service provider M/s Mcnally Bharat Engineering Co. Ltd. have issued the certificate dated 11.09.2007, certifying that the services/ works under the disputed invoices were completed after 10.09.2004. It is his submission that though the said certificate was produced before the authorities below, but no findings were recorded as to why the same cannot be accepted as proof of completion of the work after the effective date. Thus, according to the Ld. Advocate, the onus lies with the Department to prove that the services were provided prior to 10.09.2004 have not been satisfactorily discharged.
3. Per contra, the Ld. DR, Sh. RK Mishra appearing for the Respondent reiterates the findings recorded in the impugned order.
4. I have heard the Ld. Counsel of both sides and perused the records.
5. The Cenvat Credit Rules, 2004 were framed vide Notification No. 23/04-CE(NT), dated 10.09.2004. In Rule 3 of the said Rules, the embargo has been created, which is to the effect that input service received by the manufacturer of the final product on or after such effective date i.e. 10.09.2004, will be eligible for taking the cenvat credit. Since the disputed invoices were issued on 28.09.2004, 29.09.2004 and 20.12.2004, the Department took the view that the services in relating to those invoices were provided prior to such effective date, and accordingly denied the cenvat benefit to the appellant. In arriving at such conclusion, the Department has not produced any evidence to show that the work/ service, in question, were completed prior to 10.09.2004. However, I find from the certificate produced by the appellant that the service provider M/s Mcnally Bharat Engineering Co. Ltd. vide their certificate dated 11.09.2007 has categorically stated that work/service relates to the disputed invoices were completed after 10.09.2004. I also find that though the said certificate was produced by the appellant before the authorities below, but no findings have been recorded in dis-proving the same. Since no material evidence has been brought on record by the Department to prove that the works/ service has been completed before 01.09.2004 and the genuineness of the certificate having not been disputed either by the Adjudicating Authority or by the Appellate Authority, the cenvat benefit cannot be denied to the appellant. Therefore, the impugned order is set aside and the appeal is allowed in favour of the appellant with consequential relief, if any, as per law.
(Dictated and pronounced in open court)
(S. K. Mohanty) Member (Judicial)
Neha
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E/1851/2009-E[SM]
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