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TMI Blog2016 (12) TMI 1472X X X X Extracts X X X X X X X X Extracts X X X X ..... oads. Revenue, being of the opinion that no tax was leviable on construction of roads, considered this availment to be ineligible in terms of Rule 3 of CENVAT Credit Rules, 2004. The said Rules are extracted as below: "(1) A ... ... ... ..... or a provider of taxable service shall be allowed to take credit (hereinafter referred to as the CENVAT credit) of - (i) .... (ii) ... ... ... ... (ix) the service tax leviable under section 66 of the Finance Act;" 4. The appellant has contested the disallowance of CENVAT credit on the ground that they had made use of the contractors providing 'commercial or industrial construction' service and that the payments effected to these contractors included a service tax component which had been duly discharged by them; consequently, they are entitled to avail CENVAT credit of the tax so paid. 5. Learned Counsel for the appellant place reliance on the decisions of this Tribunal in Deloitte Haskins & Sells v. Commissioner of Central Excise, Thane - I [2015 (38) STR 1220 (Tri.Mumbai)], Crown Products ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ive provisions indicating the subject matter of the tax and the rates at which it has to be taxed. The term "assessment", on the other hand, generally used in this country for the actual procedure adopted in fixing the toiletry to pay a tax on account of particular goods or property or whatever may be the object of the tax in a particular case and determining its amount. The Division Bench appeared to equate "levy" with an "assessment" as well as with the collection of a tax when it held that "when the payment of tax is enforced, there is a levy". We think that, although the connotation of the term "levy" seems wider than that of "assessment", which it includes, yet, it does not seem to us to extend to "collection". Article 265 of the Constitution makes a distinction between "levy" and "Collection". We also find that in N. B. Sanjana v. The Elphinstone Spg. &. Wvg. Mills Co. Ltd. AIR 1971 SC 2039 at p. 2045 this Court made a distinction between "levy" and collection" as used in the Act and the Rules before us. It said there with reference to Rule 10 : "We are not inclined to accept the contention of Dr. Syed Mohammad that the expression 'levy' in Rule 10 means actual collection o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n a series of case laws including those laid by the Apex Court as tabulated in Para 2 above. The judgment of CCE Pondicherry vs. Mohan Breweries and Distilleries Limited [2010 (259) ELT 176 (Mad.)] = 2010-TIOL-675-HC-MAD-CX, delivered by Madras High Court is relevant. The facts of that case and the conclusions arrived at in that case are as follows:- 3. The short facts which are required to be stated are that the first respondent is engaged in the manufacture of glass bottles falling under Chapter 70 of the Central Excise Tariff. On verification of MODVAT documents for the month of October, 1999, the authorities of the appellant noticed that Rs. 3,44,000/- was availed as credit on Capital Goods for No. 1 of Hindustan 2021 Loader with 2 Bar, which was classified by invoice No. 20076 dated 21-8-1999 of M/s. Hindustan Motors Limited, Pondicherry. The invoice product was classified under the heading 84.29. As 84.29 was specifically excluded item under Rule 57-Q of the Central Excise Rules, 1944, a show-cause notice was issued to the first respondent on 7-3-2000. The first respondent filed its reply. After affording personal hearing, the original authority by its order dated 27-11-200 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the first process of manufacture of glass in the factory premises, applying the decision of the Honble the Supreme Court in Commr. of C. Ex., Jaipur v. Rajasthan Spinning & Weaving Mills Ltd. [2010 (255) E.L.T. 481 (S.C.)] = 2010-TIOL-51-SC-CX, it should be held that the first respondent was entitled for credit availed. Extending the above submissions, learned counsel contended that even by applying the decision of the Honble Supreme Court in Sarvesh Refractories (P) Ltd. v. Commissioner of C. Ex. & Customs [2007 (218) E.L.T. 488 (S.C.)] = 2007-TIOL-233-SC-CX, if the shovel loader by virtue of its classification as falling under 84.29 has been excluded since such a classification has been specified by the manufacturer of product itself. The first respondents contention based on clause 5 of the table annexed to Rule 57-Q should be allowed to be exempted by the lower authorities. Learned counsel made the above alternate submission while contending that the Tribunal was justified in classifying the capital goods as one falling under the heading 84.28. 6. Having considered the submissions of respective counsel, we find that the Commissioner of Appeals as well as the Tribunal have co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... conclusion relied upon the judgment of Hon'ble Supreme Court in the case of Sarvesh Refractories Pvt. Limited vs. Commissioner [2007 (218) ELT 488 (SC)] = 2007-TIOL-233-SC-CX. Para 2 to 6 of this order of Honble Apex Court are relevant and are reproduced below:- 2. The appellant purchased Loadall from M/s. Escorts JCB Ltd. The cost element of the Loadallincluded excise duty to the tune of Rs. 1,79,328/-. The appellant claimed Modvat credit in respect of the said item under Rule 57Q of the Central Excise Rules, 1944 (for short, the Rules). 3. Since the said item had been classified by M/s. Escorts JCB Ltd., the manufacturer and supplier, under Heading 84.29 and had paid duty under the said heading, the authority-in-original, viz., Dy. Commissioner disallowed the Modvat credit to the appellant by observing that the said Heading 84.29 has been specifically ousted from the definition of capital goods under Rule 57Q of the Rules. The Dy. Commissioner also imposed a penalty of Rs. 50,000/- under Rule 173Q (bb) of the Rules. 4. On appeal filed by the appellant, the Commissioner (Appeals) observed that Loadall being an improvised version of material handling equipment would properly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on a challenge to levy by the provider of the service or if Revenue sought to recover any amount in relation to such service. There can be no doubt that the provider of service who is as registered assessee under Finance Act, 1994 would be filing returns of tax collected along with payments received for construction of roads and which, having been accepted by the Revenue, attains finality in relation to leviability. Had such tax not been leviable it was the bounden responsibility of Revenue to scrutinize the return and accord a finding that the tax not due has been paid. In failing to take such action on the return filed by the service provider Revenue is barred from raising a ground of non leviable. By no stretch of imagination is it possible for the recipient of the service to decline to pay service tax component on the bill raised by the service provider. There is no doubt that Rule 3 of the CENVAT Credit Rules 2004, as claimed by the learned Authorised Representative, is the foundation for allowing of CENVAT credit on tax which is leviable under Finance Act, 1994. However, Rule 4 of the said Rules limit the taking of CENVAT credit to the amount including the s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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