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TMI Blog2011 (7) TMI 443X X X X Extracts X X X X X X X X Extracts X X X X ..... appeals have been challenged before the appellate authority, the impugned order to the extent it relates to the claim of credit in relation to the service tax on the said three services are concerned is not sustainable and is liable to be set aside to that extent and matter remanded to decide the said claim afresh in accordance with the provisions of law. - 360 /2011- Ex(BR), 361 /2011- Ex(BR) - - - Dated:- 4-7-2011 - Shri Justice R.M.S. Khandeparkar, Shri M. Veeraiyan, JJ. Shri K.Kunal, Advocate for the Appellants Shri R.K. Verma, DR for the Respondent Per Mr. Justice R.M.S. Khandeparkar (for the Bench): These appeals are being heard in terms of order passed in Stay Application Nos. 422 428/2011. Though the i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellants and that too without analysing the facts on record. He further submitted that considering the fact that the Tribunal has already held that the assessee were entitled for such credit in relation to service tax paid on the services in question, the Commissioner could not have ignored the said decisions of the Tribunal and the order is in contravention of the judicial discipline which was expected and was required to be observed by the Commissioner. 3. Learned DR, on the other hand, placing reliance in the decision in the case of CCE Nagpur vs. Manikgarh Cement Works reported in 2010 (18) STR 275 (Tri-Mum) and the decision of the Hon ble Supreme Court in Maruti Suzuki Ltd. vs. CCE, Delhi III reported in 2009 (240) ELT 641 su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... failed to produce any material in support of their claim or in relation to a link between the service tax and the manufacturing activity of the appellants. Being so, the appellants are justified in contending that the impugned order does not disclose proper application of mind to the facts of the case and proper reasoning for refusal of relief after taking into consideration the factual matrix of the case. 5. At the same time, it is pertinent to note that learned Commissioner has taken note of the fact that the issues involved in the matter were also subject matter for consideration by the Tribunal in two cases namely , Balkrishna Industries Ltd. (supra) and Stenzen Toyotetsu India P.Ltd. (supra). However, strangely he has chosen not to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... led belatedly and only notice for condonation of delay is issued on the other side. This fact itself is not sufficient to empower the Commissioner to take different view and not to follow the order passed by the CESTAT. 6. Considering the fact that the Commissioner had failed to analyse the facts on record, and then to apply the law to those facts to ascertain whether the claim of the appellants is sustainable or not and consequently, because the Commissioner ignored the decisions of the Tribunal solely on the ground that those appeals have been challenged before the appellate authority, the impugned order to the extent it relates to the claim of credit in relation to the service tax on the said three services are concerned is not susta ..... X X X X Extracts X X X X X X X X Extracts X X X X
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