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TMI Blog2012 (11) TMI 73X X X X Extracts X X X X X X X X Extracts X X X X ..... rat Raichandani, Adv. For Respondent: Mr H B Negi, Addl. Commr.(AR) Per: P R Chandrasekharan: 1. This appeal and stay applications are directed against the order-in-appeal No. SB(96-97) 96-97/MV/2010 dated 03/09/2010 passed by the Commissioner of Central Excise (Appeals), Mumbai, Zone-I. The stay applications are being taken up for consideration. 2. The appellant M/s. Tata Steel Ltd., Borivali, are manufacturers of goods falling under Chapter 72 73 of the schedule to the Central Exicse Tariff Act. They are also availing Cenvat Credit on inputs, capital goods and input services under the provisions of the Cenvat Credit Rules, 2004. Four show-cause notices dated 13/03/2009, 16/07/2009, 05/11/2009 and 22/12/2009 were issued to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pugned period is Rs.11,53,029/-. The show-cause notices were adjudicated by the jurisdictional Assistant Commissioner, who vide order dated 11/03/2010 held that the appellants are not entitled for the Cenvat Credit in respect of various input service' and also in respect of service tax paid on outward transportation from their depots to the customers and the entire service ax demand was confirmed. The adjudicating authority also demanded interest under Section 11AB of the Central Excise Act, 1944 read with Rule 14 of the Cenvat Credit Rules, 2004 and also imposed a penalty of Rs.2,000/- under Rule 15(3) of the Cenvat Credit Rules, 2004. The appellant preferred an appeal before the Commissioner (Appeals), who vide the impugned order rejecte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice' means any service used by a provider of taxable service for providing an output service or used by the manufacturer whether directly or indirectly in or in relation to the manufacturer of final products and clearance of the final products up to the place of removal . As per Rule 2 (p) output service means' any taxable service excluding the taxable service referred to in sub-clause (zzp) of clause (105) of the Finance Act provided by the provider of taxable service to a customer/client. Subscriber, policy holder or any other person and the case may be and the expression provided' shall be construed accordingly. From these definitions it is clear that during the impugned period the services of GTA was excluded from the scope of output ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts utilization in or in relation to the manufacture of final products or rendering of output service. Therefore, prima facie, we find that the appellant has not made out any case for complete waiver of pre-deposit of dues adjudged. Therefore, we direct the appellant to make a pre-deposit of 50% of the Cenvat Credit demanded within a period of four weeks and report compliance on or before 28th February 2012. On such compliance, the balance of dues adjudged shall stand waived and recovery thereof stayed during the pendency of the appeals. (Pronounced in Court on ..) Per: Ashok Jindal: 7. I have gone through the order and findings recorded by the learned brother Shri P. R. Chandrasekharan, Member (T), but I do not fully agree ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellant's own case for earlier period, keeping the consistency in passing the order, I am of the view that the appellants have made out a prima facie case for waiver of pre-deposit. Accordingly, I waive the requirement of pre-deposit as discussed above. DIFFERENCE OF OPINION As there is a difference of opinion between the Members, therefore, matter may be placed before the Hon'ble Vice-President, HOD for referring the matter to third Member to decide the following issue:- (a) Whether the appellants are required to make a pre-deposit as directed by the Member (Technical) Or (b) Whether the appellants are not required to make any pre-deposit as held by the Member (Judicial), In continuation of Misc. Order No. M/126/12/EB/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he contention is that the appeals be heard without any pre-deposit. Applicants also relied upon the decision of the Hon'ble Bombay High Court in the case Hindustan Petroleum Corporation Ltd vs Union of India reported in 2010 (250) ELT 212 (Bom) to submit that the Tribunal has to follow the principles of consistency in deciding the cases. 4. The Revenue submitted that the Tribunal in the earlier decisions relied upon the decision of the Tribunal in the case of M/s. Ecof Industries Pvt. Ltd. vs CCE reported in whereby the Tribunal had only taken into consideration the provisions of the Cenvat Credit Rules. The Tribunal has not taken into consideration the definition of input services as provided under Rule 2(1)of the Cenvat Credit Rule ..... X X X X Extracts X X X X X X X X Extracts X X X X
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