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2024 (7) TMI 925 - AT - Central ExciseCENVAT Credit - clearance of cement coated pipes under exemption N/N. 6/2006-CE dated 01.03.2006 directly from the job worker s premises - Department is of the view that activity undertaken by the job worker that of cement coating on the steel pipes amounts to manufacture as per clause (5) of the Chapter note 73 of Central Excise Tariff Act, 1985 hence the job worker is not liable to charge and pay any service tax on such activity - manufacture of dutiable and exempted goods - Failure to separate accounts - HELD THAT - It is matter of record that since the appellant have availed credit of common input services which have been used both in the manufacture of dutiable and exempted goods and have not maintained separate accounts with respect to dutiable and exempted goods as required under Rule 6(2) of the Cenvat Credit Rules, 2004 they have paid an amount equal to 6% of the value of exempted goods cleared by them, as provided under Rule 6(3)(i) of Cenvat Credit Rules, 2004. With regard to the question whether the appellant is entitled to avail Cenvat credit of the service tax paid by the job worker for the activity which amounts to manufacture and thus falls beyond the scope of definition given for Business Auxiliary Service. It is found that the matter has already been decided by the Hon ble Gujarat High Court in the case of COMMISSIONER OF CENTRAL EXCISE, AHMEDABAD-III VERSUS NAHAR GRANITIES LTD. 2014 (5) TMI 57 - GUJARAT HIGH COURT - In view of the above judgment, it can be seen that on both the counts i.e. on the issue of availment of exemption Notification No. 44/2001-CE (NT) dated 26.06.2001 by the supplier and also where even if the duty is not payable by the supplier but the same was paid, Cenvat credit cannot be denied at the recipient end. Consequently, the personal penalty on Shri Omdev R. Mishra is also not imposable. Accordingly, the impugned orders are set-aside and the appeals are allowed. It is held that it is matter of record that M/s. Welspun Corp. Limited were reversing 6% of the value of goods which were cleared without payment of duty as per the requirement of Rule 6(3)(i) of Cenvat Credit Rules, 2004. At the same time, in their reply to show cause notice, it has categorically been mentioned by the respondent assessee that they have also been clearing the cement coated pipes on payment of Central Excise duty. In view of above, the grounds taken by the department for filing this appeal are devoid of merits. The appeal filed by the department is not maintainable on merits and therefore, the same is set aside. Appeal allowed.
Issues Involved:
1. Whether the appellant is entitled to avail Cenvat credit of service tax paid by the job worker for cement coating on steel pipes. 2. Whether the department can deny Cenvat credit on the ground that the job worker was not required to discharge service tax on the activity undertaken by them. 3. Whether the payment of duty can be disputed while allowing Cenvat credit at the recipient end of the inputs. Issue-wise Detailed Analysis: 1. Entitlement to Avail Cenvat Credit: The appellant, M/s. Welspun Corporation Limited, engaged in manufacturing steel pipes, availed Cenvat credit on service tax reimbursed to their job worker, M/s. Zebra Marketing, for cement coating on the pipes. The department contended that the cement coating activity amounts to manufacture under Chapter Note 73 of the Central Excise Tariff Act, 1985, thereby excluding it from the definition of Business Auxiliary Service. Consequently, the department argued that the appellant's availment of Cenvat credit amounting to Rs. 55,77,605/- was incorrect. The appellant countered by stating that they followed Rule 6(2)(i) of the Cenvat Credit Rules, 2004, paying 6% of the value of exempted goods and that the jurisdictional authorities never objected to the payment of service tax on the cement coated pipes. 2. Department's Denial of Cenvat Credit: The appellant relied on the Supreme Court decisions in CCE vs. MDS Switchgear Limited and Sarvesh Refractories vs. CCE, arguing that the show cause notice wrongly alleged that the service rendered by the job workers was exclusively for goods cleared without payment of duty. The appellant clarified that they cleared goods both on payment of duty and without payment of duty, paying 6% of the value of exempted goods as per Rule 6(3)(i) of the Cenvat Credit Rules, 2004. The Tribunal noted that since the appellant availed credit on common input services used for both dutiable and exempted goods, and complied with Rule 6(3)(i), the credit could not be denied. 3. Dispute on Payment of Duty: The Tribunal referred to the Gujarat High Court decision in CCE, Ahmedabad vs. Nahar Granites Limited, which allowed Cenvat credit even if the supplier paid excise duty under a mistaken belief. The Tribunal also cited the case of Aarti Industries Limited vs. CCE, where it was held that the recipient of goods can avail Cenvat credit if the supplier paid duty, irrespective of whether the duty was legally payable. The Tribunal emphasized that once the job worker paid service tax, which was accepted by the department, the Cenvat credit availed by the recipient could not be denied. Department's Appeal: The department's appeal argued that the Adjudicating Authority failed to address the issue that service tax was paid exclusively on goods cleared without payment of duty. The respondent, M/s. Welspun Corp. Limited, countered that they cleared goods both on payment of duty and without payment of duty, reversing 6% of the value of exempted goods as required by Rule 6(3)(i). The Tribunal found that the appellant complied with the rules and that the department's grounds for appeal lacked merit. Judgment: The Tribunal concluded that the order-in-original lacked merit, and the appeal filed by M/s. Welspun Corp. Limited was allowed. The department's appeal was dismissed, and the cross-objection was disposed of accordingly. The Tribunal held that once the job worker paid service tax, the recipient's Cenvat credit could not be denied. The judgment was pronounced in open court on 16.07.2024.
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