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TMI Blog2017 (6) TMI 464X X X X Extracts X X X X X X X X Extracts X X X X ..... supplier unit cannot be challenged by revenue in charge of recipient unit. N/N. 8/2005-ST is a conditional notification and its availment was not mandatory - the job workers were not obliged to avail the said exemption. Appeal allowed - decided in favor of appellant. - E/837/2011 - FO/A/76013/2017 - Dated:- 21-3-2017 - Dr. Satish Chandra, President And Mr. Devender Singh, Member (Technical) Sh. B.N. Chattopadhyay, Consultant for the Appellant Sh. S. Mukhopadhyay, Supdt. AR, for the Respondent ORDER Per: Devender Singh The appellant is in appeal against the impugned order. 2. The brief facts of the case are that the appellant had availed Cenvat Credit against the payment of Service Tax to the job worker ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n. He referred to Rule 3(1) and stated that the input Service Tax has been duly paid by the job workers and reimbursed by the noticee, hence, the Cenvat Credit is correctly taken. He further argued that their job workers/suppliers fall in the jurisdiction of different Central Excise Authorities and the assessment done there cannot be questioned at the receiving end. In this regard he referred to the following case laws:- (1) Markwell Paper Plast Pvt.Ltd. Vs. CCE, Noida - 2012 (285) ELT 76 (Tri.-Del.) (2) Commissioner of Central Excise Customs Vs. MDS Switchgear Ltd. - 2008 (229) ELT 485 (S.C.) (3) Neuland Laboratories Ltd. Vs. CCE, Hyderabad-I - 2015 (317) ELT 705 (Tri.- Bang.) (4) CCE, Chennai-III Vs. Nagappa Sp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ving end. In this regard, the Hon ble Supreme Court in the case of CCE Vs MDS Switchgear Ltd. (supra) has held as under:- 7. The Tribunal has come to the conclusion that in fact there was no loss of revenue. It accepted the appeal by recording the following reasons : Reasons given by the appellants for the alleged inflation of the value of the intermediate goods are logical. What was required of the Commissioner was to examine the quantum of the loading of the assessable value by the Modvat credit on the earlier inputs. That exercise has nowhere been done. If the department was of the opinion that the value of the final product was depressed, then they could have charged the Jalgaon unit with under-invoicing of their product. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any protest nor the appellants were informed that their final products was not subject to excise duty as it emerged from the process not amounting to manufacture as defined under Section 2(f) of the Central Excise Act. Learned Counsel for the respondent department has tried to justify the impugned order disallowing the Cenvat credit availed by the appellant on the inputs on the plea that the final product has not emerged from the process which could be termed as manufactured. Such an argument, in our view cannot be sustained as it is against the tenets of equity and justice. The department having accepted the excise duty on the final product cannot be permitted to deny Cenvat credit on the inputs used for the manufacture of the final produ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... referred in sub-clause (v) of clause (19) of Section 65 of the said Finance Act, from the whole of service tax leviable thereon under Section 66 of the said Finance Act : Provided that the said exemption shall apply only in cases where such goods are produced using raw materials or semi-finished goods supplied by the client and goods so produced are returned back to the said client for use in or in relation to manufacture of any other goods falling under the First Schedule to the Central Excise Tariff Act, 1985 (5 of 1986), as amended by the Central Excise Tariff (Amendment) Act, 2004 (5 of 2005), on which appropriate duty of excise is payable. Explanation. - For the purposes of this notification, - (i) the expression product ..... X X X X Extracts X X X X X X X X Extracts X X X X
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