M/S. Ultra Tech Cement Ltd vs Commissioner Of Central Excise

Customs Excise and Service Tax Appellate Tribunal10 June 2015

CitationAppeal No. ST/89327, 86340 and 86098/13

Ratio decidendi

The rule this decision rests on

Services received and used in the appellant's residential colony for its employees do not qualify as input services, so CENVAT credit availed on them is ineligible and the demand for it, together with interest, is sustainable, the question being settled by the Bombay High Court's decision in CCE v. Manikgarh Cement. Where the assessee has been found liable for ineligible CENVAT credit and the penalties were imposed on an identical issue, a penalty cannot be sustained where the Tribunal's earlier decision in the same appellant's own case has set aside penalties on that issue, following the Andhra Pradesh High Court's decision in CCE Hyderabad-III v. ITC Ltd., and no reason is found to depart from that view, so the penalties are set aside.

Written by Miss Lucy from the judgment below, not taken from a headnote.

Judgment

As delivered

IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL, WEST ZONAL BENCH AT MUMBAI

COURT No. I

Appeal No. ST/89327, 86340 and 86098/13

(Arising out of Orders-in-Appeal No. NGP/EXCUS/000/APP/ 735/13-14 dated 02.08.2013, No. PVR/273/NGP/2012 dated 31.12.2012 and No. PVR/230 to 235/NGP/2012 dated 26.11.2012 passed by Commissioner of Central Excise Customs & Service Tax (Appeals), Nagpur)

For approval and signature:

Honble Mr. M.V. Ravindran, Member (Judicial) Honble Mr. P.S. Pruthi, Member (Technical)

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1. Whether Press Reporters may be allowed to see : No 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 : No CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?

3. Whether Their Lordships wish to see the fair copy : Seen of the Order?

4. Whether Order is to be circulated to the Departmental : Yes authorities?

M/s. Ultra Tech Cement Ltd. Appellant Vs.

Commissioner of Central Excise Nagpur Respondent

Appearance:

Shri Rajesh Ostwal, C.A. for appellant Shri H.M. Dixit, Asst. Commissioner (AR) for respondent

CORAM:

Honble Mr. M.V. Ravindran, Member (Judicial)

Date of Hearing: 09.06.2015 Date of Decision: 09.06.2015

ORDER NO

Per: M.V. Ravindran

These appeals are directed against Orders-in-Appeal No. NGP/EXCUS/000/APP/ 735/13-14 dated 02.08.2013, No. PVR/273/NGP/2012 dated 31.12.2012 and No. PVR/230 to 235/NGP/2012 dated 26.11.2012. Since these appeals raise the same question of facts and law, they are being disposed of by a common order.

2. Heard both sides and perused the records.

3. The issue involved in these cases is regarding ineligible CENVAT Credit availed by the appellant on various services which were received and used in the residential colony of the appellant.

4. It is undisputed that the services on which CENVAT Credit were availed are used in the residential colony by the appellant. This issue is no more res integra as the Honble High Court of Bombay in the case of CCE v. Manikgarh Cement 2010 (20) STR 456 (Bom.) has allowed the appeal of the Revenue and held that the services which are rendered at the residential colony for employees cannot be availed as CENVAT Credit. In view of the law being settled the demand of CENVAT Credit as ineligible and the interest thereof is correct and needs to be upheld.

4.1 In the appellants own case in final order No. A/275-278/13/SMB/C-IV dated 15.4.2013, this Bench on an identical issue, set aside the penalties relying upon the Judgement of the Honble High Court of Andhra Pradesh in the case of CCE Hyderabad III vs. ITC Ltd. reported in 2012-TIOL-199-HC-AP-ST. I do not find any reason to deviate from such a view already taken by the bench in respect of the very same appellant. Accordingly, the penalties imposed on the appellant are set aside.

5. The appeals are disposed of as indicated herein above.

(Dictated in Court)

(M.V. Ravindran) Member (Judicial)

nsk

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