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TMI Blog2017 (8) TMI 311X X X X Extracts X X X X X X X X Extracts X X X X ..... which suggests that CENVAT credit would be available to an output service provider, only if, the capital goods in issue are used in the very same premises. This interpretation accords with what we have stated with regard to Rule 3(5) read with the proviso appended thereto - appeal dismissed - decided against Revenue. - CMA No. 2594 of 2013 - - - Dated:- 30-6-2017 - Rajiv Shakdher And R. Suresh Kumar, JJ. For the Appellant : Ms.Hema Murali Krishnan For the Respondent : Mr.G.Natarajan JUDGMENT ( Judgment of the Court was made by Rajiv Shakdher, J. ) 1. This is an appeal preferred by the revenue against the final Judgment and order passed by the Customs, Exercise and Service Tax Appellate Tribunal (in short the Tribun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tween September 2005 to April 2006. Admittedly, the capital equipment, which was received by the Salem SSA was used for provisioning of telephone services by other SSAs. 2.3. The Revenue, evidently, raised an objection with regard to the same and, accordingly, issued a show cause dated 13.10.2006. By virtue of this show cause notice, a demand in the sum of ₹ 1,15,86,320/- (Rupees one crore fifteen lakhs eighty six thousand three hundred and twenty only) was raised along with interest and penalty. The matter, accordingly, proceeded to adjudication. 2.4. The adjudicating authority vide Order-In-Original dated 26.03.2007 confirmed the demand. Furthermore, the assessee was called upon to pay interest under Section 75 of the Act. In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cedures and not a case of mis-utilisation of any ineligible credit. Further, we note that there has not been any distribution of credit involved because of the entire credit taken at one location was taken in one office making it easy for Revenue to conduct verification as may be necessary. The argument of the appellants that the premises where the equipments are used belong to BSNL and not to any other party and it is also used for completion of services originating from Salem also are strong arguments in favour of the appellants. Since MODVAT credit is a substantial benefit, we are of the view that the impugned credit should not be denied on account of procedural defects of minor nature as pointed out by the Revenue. Therefore, we hold th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (ii) any input service received by the manufacturer of final product or by the provider of output services on or after the 10th day of September, 2004... 6.2. Therefore, it is the learned counsel's contention that since the capital goods were used by an SSA other than the one, in which they were received, the assessee could not have availed of CENVAT credit. 7. On the other hand, Mr.Natarajan, has drawn our attention to Rule 3(5) of the Cenvat Credit Rules, 2004. Based on the proviso to Rule 3(5) of the Cenvat Credit Rules, 2004, Mr.Natarajan, says that no reversal of CENVAT credit can be sought, where capital goods though removed outside the premises of the provider of output service are removed for the purpose of providing o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pect of such inputs or capital goods and such removal shall be made under the cover of an invoice referred to in rule 9; Provided that such payment shall not be required to be made where any inputs or capital goods are removed outside the premises of the provider of output service for providing the output service. 10. Furthermore the submission of Hema Murali Krishnan, which is based on, as indicated above, on her interpretation of Rule 3 (1) (i), cannot be accepted, for the reason that Rule 3(1)(i) allows, inter alia, a provider of output service to take CENVAT credit of any duty of excise, which is paid on capital goods received in the premises of the provider of output service, whereas, there is nothing in the said Rule which s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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