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TMI Blog2017 (3) TMI 994X X X X Extracts X X X X X X X X Extracts X X X X ..... d along with interest and corresponding equivalent penalty imposed for this demand cannot be sustained and are hereby set aside. The Cenvat credit on inputs, capital goods and input services which are used for manufacture of goods or for provision of services is available in a common pool and can be used for payment of excise duty and/or service tax. Commission agent is available as credit to assessee, who is engaged in the manufacture of goods as well as who renders certain services - cenvat credit taken on the said commission agent’s services which enabled the appellant assessee procurement of Purchase Order No. 273 dated 04.01.2007, is not admissible to them as per the provisions of Rule 6 of CCR, 2004. Appeal disposed off - dec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is not correct. Purchase order mentioned the scope of the services provided to the appellant. The Commission agent s service was procured for obtaining a total order of supply as well as service by the appellant for Maharashtra State Electricity Transmission Co. Ltd (MSETCL). A part of the said services cannot be vivisected to disallow the cenvat credit to the appellant. In support of the same, the appellant places reliance on the Final Order No, 53525/2016 dated 14.09.2016 passed by the Hon ble CESTAT- New Delhi in the case of MIs Genus Power Infrastructure Ltd. V. CST, Jaipur- I. Without prejudice, the appellant also submits that even if the entire supply portion was traded by it, still it would be entitled to avail the Cenvat credit of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n by the assessee, which was earned by other three exempted units of the assessee appellant. ii. Assessee cannot take credit for the input services used in the manufacture activity of other units merely because they belong to the same manufacture group. iii. In this case, the credit of Service tax ₹ 37,27,241/- relates to the input service credit of three exempted unit of the assessee and said credit cannot be taken by the assessee appellant. iv. Cenvat credit of ₹ 13,83,183/- has been earned for payment of service tax on commission given to commission agents, who provided orders for commissioning and installation services for the assessee. These input services that is commission agents services have no nexus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Notice is the foundation in the matter of levy and recovery of duty and penalty and interest; if there is no invocation of relevant Rules it would not be open to the adjudicating authority to invoke the said Rules. Therefore, the demand of Cenvat Credit of ₹ 37,27,241/- confirmed along with interest and corresponding equivalent penalty imposed for this demand cannot be sustained and are hereby set aside. 6. In case of confirmation of demand of cenvat credit ₹ 13,83,183/- the argument given in the impugned order is that the Cenvat Credit accrued is by payment of service tax on commission given to commission agents by utilizing whose services the assessee appellant got the orders for commissioning and installation services, I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the demand of ₹ 13,83,183/- along with interest and corresponding equivalent penalty imposed on this count are hereby set aside. 7. It is on record that the cenvat credit amounting to ₹ 16,93,417/- relates to Service Tax paid on the commission agent M/s GEE Ispat (P) Ltd s service. The said commission agent s services enabled the assessee procurement of purchase order no. 273 dated 04.01.2007 from MSETC (Maharashtra State Electricity Transmission Co. Ltd.). As these supplies are of 3rd party goods and trading of goods is not recognized as service under the law of service tax, the assessee appellant has not paid any service tax on the said trading of 3rd party goods. Therefore, cenvat credit taken on the said commission agent ..... X X X X Extracts X X X X X X X X Extracts X X X X
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