M/S. The Malt Company India (P)Ltd vs C.C.E. Delhi-Ii

[Arising out of Order-in-Appeal No. 78-CE/D/II/13 dated 05.04.2013 by the Commissioner of Central Excise (Appeals), Delhi-II].

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?

M/s. The Malt Company India (P)Ltd. .Appellants

Vs.

C.C.E. Delhi-II .Respondent

Appearance:

Shri H. Bajaj, DR for the Appellants

Shri R.K. Mishra, Advocate for the Respondent

CORAM:

Hon'ble Shri Ashok Jindal, Member (Judicial)

Date of Hearing: 13.01.2015

FINAL ORDER NO.50052/2015-EX(SM)

Per Ashok Jindal:

The appellant have two units  unit No. 1 Khandsa Road, Gurgaon and the second unit at Tehsil Patudi  Distt. Gurgaon. While the Central Excise registration No. of Khandsa Road unit is AAACT30036 EXM001, the Central Excise registration number of the Patudi unit is AAACT30036 EXM002. Both units manufactured the same product. The dispute in this case is in respect of Patudi unit. The Patudi unit received GTA service in respect of which they paid service tax under GAR-7 dated 05/10/07. The service tax paid alongwith education cess was Rs. 1,87,577/-. The appellant took Cenvat credit of this amount on the basis of the GAR-7 dated 05/10/07. However, the departments objection is that the GAR-7 under which the service tax had been paid mentions the central excise registration of the Khandsa road unit - AAACT30036 EXM001. On this basis, the service tax credit of Rs. 1,87,571/- is sought to be denied even though the assessees name and address in GAR-7 is correctly mentioned. The appellant received taxable services from various providers on the basis of which they took Cenvat credit of Rs. 59,876/-. The total number of invoices involved is eight. The departments objection is that while the invoices had been issued by the service providers to the Khandsa road unit, on the basis of those invoices, the appellant unit at Patudi could not take the Cenvat credit. On this basis, after issue of show cause notice total Cenvat credit demand of Rs. 2,47,453/- was confirmed alongwith interest and penalty of equal amount was imposed by the Assistant Commissioners order dated 20th April, 2011. On appeal being filed against this order, the Commissioner (Appeals) by the impugned order dated 05/4/13 upheld the Assistant Commissioners order against which this appeal has been filed.

2. Heard both the sides.

3. Shri Hemant Bajaj, Advocate, the learned Counsel for the appellant, pleaded that so far as amount of Cenvat credit of Rs. 1,87,577/- in respect of GTA service is concerned, the only objection of the department is that in the GAR-7, the excise registration of the appellant is wrongly mentioned, that when the appellants name and address is correctly mentioned, it is wrong to deny the Cenvat credit just on account of mistake in mentioning the Central excise registration number which is of the Khandsa unit, that in view of this the denial of Cenvat credit of Rs. 1,87,577/- is without any basis, that as regards the Cenvat credit of Rs. 59,876/- on the basis of 8 invoices, the basis of denial is that these invoices had been issued to Khandsa road unit and not to Patudi unit, that in this regard, not only the service providers have issued letters correcting the name of the service recipient as Patudi unit, the Khandsa road unit has also given an undertaking that no Cenvat credit has been taken on the basis of those invoices, that in view of this factual position, the denial of Cenvat credit of Rs. 59,876/- is also of without any basis, that the appellant is entitled to take the credit.

4. Shri R.K. Mishra, the learned Jt. CDR, reiterated the findings of the Commissioner (Appeals) in the impugned order.

5. I have carefully considered the submissions from both the sides and perused the records.

6. So far as, the denial of Cenvat credit of Rs. 1,87,577/- is concerned, this credit had been taken on the basis of GAR-7 dated 05/10/07 under which this amount of service tax on GTA service received had been paid. On going through the GAR-7 it is seen that while the name of the appellant and address is correctly mentioned and the mistake is only the Central excise registration which is of the Khandsa road unit. I hold that just for this mistake the denial of Cenvat credit is not correct.

7. As regards Cenvat credit of Rs. 59,876/-, though the invoices on the basis of which this credit had been taken are bear the address of Khandsa road unit, I find that subsequently the service providers had issued letters making corrections in these invoices. Moreover, it is not the departments allegation that on the basis of which these invoices Khandsa road unit has also taken the Cenvat credit and in this regard the other unit has also given an undertaking. In view of these facts, I am of the view that denial of Cenvat credit of Rs. 59,876/- is also not sustainable.

8. In view of the above discussion, the appellant is entitled to take the Cenvat Credit. Therefore, I set aside the impugned order and allow the appeal with consequential relief, if any.

(Dictated and pronounced in the open court)

(Ashok Jindal) Member (Judicial)

Bhanu

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E/58731/2013-EX(SM)