M/S. Ultratech Cement vs Commissioner Of Central Excise

[Arising out of Order-In-Appeal No. 30-CE/GZB/2013 dated 28. 02.2013 passed by Commissioner of Customs & Central Excise (Appeals), Ghaziabad]

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. Ultratech Cement Appellants

Vs.

Commissioner of Central Excise Respondent

& ST, Ghaziabad

Appearance:

Shri Hemant Bajaj, Advocate for the Appellants

Shri A K Dhawan, AR for the Respondent

CORAM:

Hon'ble Shri Ashok Jindal, Member (Judicial)

Date of Hearing /decision: 14.1.2015

FINAL ORDER NOS. A/ 50097 /2015-Ex(SM)

Per Ashok Jindal :

Cenvat credit on capital goods and rent a cab service is sought to be denied by way of impugned order.

2. The facts of the case are that the appellant is manufacturer of cement and procured the capital goods and received rent-a-cab service. During the course of audit, it was found that the original copy of the invoices against the capital goods impugned were procured by the appellants is not on record. Therefore Cenvat credit on capital goods were sought to be denied and on rent-a-cab service, the inputs service credit was sought to be denied on the premise that the said service does not qualify as input service as per Rule 2(l) of Cenvat Credit Rules, 2004. The show cause notice was issued to deny the credit and for demand of interest and for imposition of penalty. The adjudication order confirmed demand of duty along with interest and penalty was also imposed The said order was confirmed by the learned Commissioner (Appeals). Against that order, appellant is before me.

3. The learned Counsel for the appellant submits that as the original invoice was missing with them, they reversed the Cenvat credit, but they obtained triplicate copy of invoice from the supplier of capital goods and with due intimation to the department, they took the Cenvat credit and as per Rule 9 of the Cenvat Credit Rules, 2004, they are entitled to take credit on the strength of invoices issued by the supplier. To support this contention, he relied on the decision of Honble High Court of Punjab and Haryana in the case of Stelko Strips Ltd. 2010 (255) ELT 397 (P&H) and Ralson India Ltd. [2006 (202) ELT 759 (P&H)]. For denial of Cenvat credit on rent-a-cab service, it is the contention of the appellant that rent-a-cab service has been used by them for traveling of the employees from their residence to factory and vice versa and sometimes the cabs were used for official purposes of the appellant. Therefore, as per decision of Honble High Court of Bombay in their own case reported as [2010 (260) ELT 369(Bom)], they are entitled to take Cenvat credit.

4. On the other hand, learned AR submits that as per Rule 11 of the Cenvat credit Rules, 2004, the appellant is entitled to take Cenvat credit on the strength of original invoices as original invoices has not been produced by the appellant, therefore they are not entitled to take Cenvat credit. For availment of Cenvat credit on rent-a-cab service, he submits that invoices are not in the name of appellant. Therefore, appellant is not entitled to take Cenvat credit.

5. Heard the parties. Considered the submissions.

6. In this case, it is not in dispute that capital goods have not been received by the appellants and duty has not been paid by the appellant. Therefore, reliance on the decision of Honble High Court of Punjab and Haryana in the cases of Stelko Strips Ltd. (supra) and Ralson India Ltd. (supra), the appellant is entitled to take Cenvat credit on the strength of original triplicate copy of invoices issued by the supplier. Further, I find that in appellants own case, the Honble High Court of Bombay, any services availed by any manufacturer of excisable goods in the course of their business of manufacturing, appellant is entitled to take Cenvat credit. Therefore, the appellant is entitled to take Cenvat credit on rent-a-cab service as same has been used by them in the course of their business activity of manufacturing of excisable goods. In these circumstances, I hold that appellants are entitled to take Cenvat credit. Therefore, impugned order deserves no merits, hence set aside by allowing the appeal.

(dictated and pronounced in the open court )

( Ashok Jindal ) Member(Judicial)

ss

??

??

??

??

4