M/S Zydus Atlanta Healthcare Pvt. Ltd vs Commissioner, Central Excise, Belapur

[Arising out of Order-in-Appeal No. YDB/125-134/BEL/2010 dated 26.02.2010 passed by the Commissioner of Central Excise, Belapur-II].

For approval and signature:

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

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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 Zydus Atlanta Healthcare Pvt. Ltd. Appellant

Vs.

Commissioner, Central Excise, Belapur Respondent

Appearance:

Shri S. Hasija, Supdt. (AR) for Appellant

Shri Sachin Chitnis, Advocate for Respondent

CORAM:

HONBLE SHRI M.V. RAVINDRAN, MEMBER (JUDICIAL)

Date of Hearing: 10.06.2015

Date of Decision: 10.06.2015

ORDER NO.

Per: Shri M. V. Ravindran, Member (Judicial)

1. By this common order, I dispose of the following appeals as filed by the revenue as well as the assessee.

ZYDUS APPEAL NOS. Sr. No. Zydus Appeal No. Order-in-

Original No. & date Order-in-

Appeal No. & date Period Input Services on which refund claim is allowed Amount (Rs.)

1. E/961/10 Belapur/Dn/ II/Range II/ 309/08-09/ AC dtd. 01.05.2009

-do-

June, 2008 Catering 16,254/-

2. E/962/10 Belapur/Dn/ II/Range II/ 311/08-09/ AC dtd. 01.05.2009

-do-

Mar., 2008 Catering & Shipping 15,502/-

3. E/963/10 Belapur/Dn/ II/Range II/ 333/08-09/ AC dtd. 08.05.2009

-do-

Sep., 2008 Catering, Travel a Car,

21,557/-

4. E/964/10 Belapur/Dn/ II/Range II/ R-1179/08-09/AC dtd. 25.07.2008 YDB/125 to 134/ Bel/2010 Dated 26.2.2010 Apr., 2006 to Dec., 2006 Catering, Rent-a-cab, Shipping, Mobile, House-Keeping, CHA 2,25,075/-

5. E/965/10 Belapur/Dn/ II/Range II/ R-310/08-09/AC dtd. 01.05.2009

-do-

Apr., 2008 Catering 32,317/-

6. E/966/10 Belapur/Dn/ II/Range II/ R-335/08-09/AC dtd. 08.05.2009

-do-

Nov., 2008 Catering 28,267/-

7. E/967/10 Belapur/Dn/ II/Range II/ R-334/08-09/AC dtd. 08.05.2009

-do-

Oct., 2008 Travel Car, Catering 19,854/-

8. E/968/10 Belapur/Dn/ II/Range II/ R-332/08-09/AC dtd. 08.05.2009

-do-

Aug., 2008

16,780/-

9. E/969/10 Belapur/Dn/ II/Range II/ 336/08-09/ AC dtd. 08.05.2009

-do-

Dec., 2008 Travel Car, Catering 21,751/-

Total:

3,97,357/-

DEPTS APPEAL NOS.

Sr. No. Depts Appeal No. Order-in-

Original No. & date Order-in-

Appeal No. & date Period Input Services on which refund claim is allowed Amount (Rs.)

1.

E/916/10 Belapur/Dn/ II/Range II/ R-310/08-09/AC dtd. 01.05.2009

-do-

Apr., 2008 Clearing & forwarding Agent. 11,059/-

2. E/917/10 Belapur/Dn/ II/Range II/ R-334/08-09/AC dtd. 08.05.2009

-do-

Oct., 2008 Clearing & forwarding Agent. 24,783/-

3. E/918/10 Belapur/Dn/ II/Range II/ R-335/08-09/AC dtd. 08.05.2009

-do-

Nov., 2008 Clearing & forwarding Agent. 3,096/-

4. E/919/10 Belapur/Dn/ II/Range II/ R-309/08-09/AC dtd. 01.05.2009

-do-

June, 2008 Clearing & forwarding Agent. 5,334/-

5. E/920/10 Belapur/Dn/ II/Range II/ R-332/08-09/AC dtd. 08.05.2009

-do-

Aug., 2008 Clearing & forwarding Agent. 2,880/-

6. E/921/10 Belapur/Dn/ II/Range II/ 336/08-09/ AC dtd. 08.05.2009

-do-

Dec., 2008 Clearing & forwarding Agent. 8,135/-

7. E/922/10 Belapur/Dn. II/Range/II

-do-

Mar., 2008 Clearing & forwarding Agent. 1,732/-

8. E/923/10 1179/08-09 Dtd. 25.7.08 YDB/125 to 134/ Bel/2010 Dated 26.2.2010 Apr., 2006 to Mar., 2007 Clearing & forwarding Agent. 7,805/-

Total:

64,824/-

2. Heard both sides and perused the records.

3. On perusal of records, it transpires that appellant as well as the revenue is aggrieved by Order-in-Appeal No. YDB/125-134/BEL/2010 dated 26.02.2010, vide which the first appellate authority has rejected and allowed the refund claims of the service tax paid on various services which are utilized for manufacturing of the final products, which were exported and the CENVAT Credit could not be utilized.

4. It is not in dispute that the appellant assessee is manufacturer of the final products and they are 100% EOU.

5. I find that in respect of catering services, travel and car services, this bench vide final Order No. A/303/2012 dated 12.11.2012 (as reported at 2013/TIOL/537/CESTAT-Mum) allowed the appeal filed by same appellant assessee.

6. I do not find any reason for deviating from such a view already taken in respect of the very same assessee.

7. As regards the appeals filed by the department, the grounds of appeal and as argued by the learned departmental representative, is that service tax paid on clearing and forwarding agent services are post clearance of the final products from factory and the ownership of the goods are still vested in the assessees hand; that the place of removal cannot be part where the services are received. I find that this argument of the revenue will not carry the case any further, as the larger bench of the Tribunal in the case of Honest Biobet Pvt. Ltd.

[2014 (310) ELT 526] has held that load port is to be considered (as place of remand) under sec. 4(3)(c)(iii) of the Central Excise Act, 1944; accordingly it has to be held that any services received by an assessee at the port for export of goods has to be held as eligible for Cenvat credit under the provision of Cenvat Credit Rules, 2004.

8. In view of authoritative judicial pronouncement, I find that the appeals filed by the revenue are devoider merits.

9. In view of the forgoing, in the facts and circumstances of these cases, the assessee appellants appeals are allowed and revenues appeals are rejected.

(Dictated in Court)

(M.V. Ravindran) Saifi Member (Judicial)

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