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2018 (2) TMI 1678 - AT - Service TaxCENVAT credit - service tax paid on installation and commissioning services provided by various service providers at the site on installation of their DG sets - Held that - in appellant s own case the Division Bench of the Ahmedabad Tribunal in M/s. Veena Industries Limited Versus Commissioner of Central Excise & S.T., Vapi 2016 (1) TMI 161 - CESTAT AHMEDABAD has taken the view that the appellant is entitled to avail credit of service tax paid by their sub-contractor treating the same as input service. In the instant case, it is undisputed that the appellant is a provider of taxable service and have provided the same. They are utilising the input service provided by sub-contractors, while providing their output service. Therefore, it is abundantly clear that they are eligible to take cenvat credit of the service tax paid on the input service provided by the sub-contractors - credit allowed. Appeal allowed - decided in favor of appellant.
Issues:
Appeal against demand of cenvat credit wrongly availed, interest, and penalty imposed under Section 78 of the Finance Act read with Rule 15(3) of the Cenvat Credit Rules, 2004. Analysis: Issue 1: Demand of Cenvat Credit The appellant appealed against the demand of cenvat credit amounting to ?1,10,01,854/- wrongly availed for the period from 1.4.2010 to 31.3.2012. The Commissioner confirmed the demand, interest, and penalty. The appellant argued that they availed service tax credit for services rendered by sub-contractors directly to clients, which the department contested as not being input services for the appellant. The appellant cited judicial precedents supporting their claim, including a decision by the Division Bench of the Ahmedabad Tribunal in their favor. The Tribunal found that the appellant, being a service provider, was entitled to avail credit of service tax paid by sub-contractors as input service, as per Rule 2(l)(i) of the Cenvat Credit Rules, 2004. The impugned order was set aside, following the precedent and allowing the appeal. Issue 2: Legal Considerations The Tribunal considered various decisions cited by both parties, emphasizing the definition of "input service" under Rule 2(l) of the Cenvat Credit Rules, 2004. The appellant's counsel argued that the impugned order did not properly consider the provisions of the Cenvat Credit Rules and contradicted binding judicial precedents. The Tribunal, after analyzing the relevant legal provisions and precedents, concluded that the appellant had rightfully availed cenvat credit on services provided by sub-contractors, as they were utilized in providing output services by the appellant. The Tribunal highlighted the appellant's eligibility to take credit of service tax paid on input services provided by sub-contractors, ultimately ruling in favor of the appellant based on legal interpretations and established case law. Issue 3: Precedents and Tribunal Decisions The Tribunal referenced several judicial decisions supporting the appellant's position, including cases like New Global Technologies vs. CCE, Hira Industries Ltd. vs. CCE, and others. Notably, the Tribunal highlighted the Division Bench's decision in the appellant's own case reported in 2016 (42) STR 299, where a similar question was resolved in favor of the appellant. Additionally, the Tribunal cited the Koch-Glitsch India Ltd. vs. CCE decision, where the Tribunal ruled in favor of the assessee on a comparable issue. By relying on these precedents and tribunal decisions, the Tribunal found the impugned order unsustainable in law and set it aside, allowing the appellant's appeal with consequential relief. This detailed analysis of the judgment outlines the key issues, legal considerations, and precedents considered by the Tribunal in reaching its decision to set aside the demand of cenvat credit wrongly availed by the appellant.
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