9911796707
TMI Blog2015 (9) TMI 101X X X X Extracts X X X X X X X X Extracts X X X X ..... ENVAT Credit availed by the appellant in respect of Lease Rent paid to the Bank for the Sugar factory belonging to the Borrower M/s Tasgaon SSK Ltd., has been disallowed. 2. The brief facts are that M/s Tasgaon SSK Ltd. was a Borrower and Maharashtra State Cooperative Bank was the Lender. As the said borrower had defaulted in repayment of loan, the Bank in exercise of its power under Section 13(4) of the 'Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002' (SRFAESI Act in short) occupied the position (took over possession) of the factory from the said borrower. Subsequent to the possession by the Bank, the Bank have leased out the factory premises to the appellant vide Lease Agreement d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f M.S.C. Bank on account of the Borrower". 2.1 Further fact is that as agreed by the Lessor Bank and the appellant Lessee, as Service Tax was applicable on the amount of lease rent, the appellant deposited the lease rent to the Bank and the challans were deposited in the name of original borrower/defaultee, who was registered under the provisions of Service Tax and who is actual owner of the leased premises. 2.2 Vide show-cause notice dated 5.8.2013, the CENVAT Credit taken by the appellant was objected to by the Revenue as the Revenue felt that firstly the property taken by the Bank in the legal authority and was independently leased out to the assessee/appellant, the Bank was the person which has provided services and who are liable to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... im are tendered to the secured creditor asset shall not be sold or transferred by the secured creditor, and no further step shall be taken by him for transfer or sale of that secured asset. Further, sub-section (7) of Section 13 provides that secured asset shall, in the absence of any contract to the contrary, be held by him in trust, to be applied, firstly, in payment of such costs, charges and expenses and secondly, in discharge of the dues of the secured creditor and the residue of the money so received shall be paid to the person entitled thereto in accordance with the rights and interests. Further, sub-section (4) of Section 15 provides that the management of the business of a borrower, which had been taken over by the secured creditor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ound that credit had been allowed (CENVAT Credit) on the basis of documents, which were not prescribed under Rule 9(1) of Cenvat Credit Rules. Such orders suffer from the illegality and the same was set aside. The learned AR further relies on the SMB decision of the Tribunal in the case of Jindal Steel & Power Ltd. Vs. Commissioner of Central Excise, Raipur - 2013 (298) ELT 447 (Tri-Del), where in the case of denial of credit, when the document was Bill of Entry and the original was not available, and on the basis of which, was not in the name of the appellant, it was held that CENVAT Credit cannot be denied. 5. Having considered the rival contention, we find that the issue is debatable and prima facie the credit appears to be allowable in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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