2013 (12) TMI 49

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..... ima facie case in their favour –the requirement of pre-deposit of Cenvat credit demand, interest and penalty waived till the disposal – Stay granted.
Mr. Rakesh Kumar, J. For the Appellant : Shri Manmohan Gupta, Advocate For the Respondent : Shri Davinder Singh, Authorized Representative (Jt. CDR) ORDER Per. Rakesh Kumar :- The appellant are manufacturers of Asbestos Cement Pipes and Asbestos Cement Couplings chargeable to Central Excise duty. The only point of dispute in this case is as to whether Cenvat credit of service tax paid on commission agent's service for procuring sales order is admissible or not. The Jurisdictional Assistant Commissioner vide order-in-original dated 13/1/11 had disallowed the Cenvat credit of Rs. 2,02,8 .....

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..... s orders is covered by the definition of input service, that same view has been taken by the Tribunal in another case in the case of Birla Corporation Ltd. vs. CCE, Lucknow reported in 2012 (26) S.T.R. 591 (Tri. -Del.), that the appellant have a strong prima facie in their favour and, hence, the requirement of pre-deposit of Cenvat credit demand, interest and penalty may be waived for hearing of the appeal and recovery thereof may be stayed till the disposal of the appeal. 4. Shri Davinder Singh, the learned Jt. CDR, opposed the stay application by reiterating the findings of the Commissioner (Appeals) and pleaded that the availment of commission agents service for procuring sales orders is a post manufacturing activity, that it is the ac .....

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..... this case stands decided in the appellant's favour by the judgments of the Tribunal in the case of Birla Corporation Ltd. vs. CCE, Lucknow reported in 2013 (288) E.L.T. 427 (Tri. -Del.) and 2012 (26) S.T.R. 591 (Tri. -Del.). Besides this, same view has been expressed in the Board's Circular dated 29/4/11 and there is nothing in the clarification given by the Board, which is contrary to the provisions of the law, and, hence, the same would be binding on the Departmental officers. In view of this, the appellant have a strong prima facie case in their favour. Hence, the requirement of pre-deposit of Cenvat credit demand, interest and penalty is waived for hearing of the appeal and recovery thereof is stayed. The stay application is allowed. ( .....

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