2010 (7) TMI 262

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..... ken credit on the basis of valid documents, its eligibility to such credit cannot be questioned on the basis that the assessment of the service by the Department at the end of the service provider was incorrect – pre deposited waived
Shri P. Karthikeyan, Member (T) REPRESENTED BY : Shri J.C. Patel, Advocate, for the Appellant. Shri B.P. Pareira, JDR, for the Respondent. [Order]. - This application filed by M/s. Manikgarh Cement seeks waiver of pre-deposit and stay of recovery of demand of CENVAT credit to the tune of Rs. 42,522/- found to have been irregularly availed by the applicant along with applicable interest and a penalty of Rs. 25,000/- imposed on them by the original authority and sustained by the Commissioner (Appeals) vid .....

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..... ust emission, total particulate matter, sulphur-di-oxide for Kiln Stack only, oxides of nitrogen, noise level, analysis of suspended solid and BOD at sewage treatment plant, suspended particular matter, respirable particular matter, noise level survey at mines, analysis of water samples at mines etc. It is his submission that these activities are specifically excluded from the levy of service tax under the category "technical inspection and certification" as defined under Section 65(108) of the Finance Act, 1994. He invites my attention to the entry which reads as follows : - "........... inspection or examination of goods or process or material or any immovable property to certify that such goods or process or material or immovable proper .....

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..... ok a similar view relying on several earlier decisions of the Tribunal, cited by the appellants. The Tribunal accepted the argument of the appellants (herein that once duty was actually paid by the input supplier, recipient manufacturer was entitled to credit of the same irrespective of the fact whether such inputs were liable to duty or not. It was also held that though the decision cited related to dispute in a Central Excise case, the principle applied also to Service Tax cases. 7. I find merit in the arguments of the learned Counsel for the appellants. The impugned demand is of service tax paid by the appellants and credit of which was taken. The appellants have made a strong prima facie case against the demand confirmed and pena .....

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