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TMI Blog2017 (12) TMI 157X X X X Extracts X X X X X X X X Extracts X X X X ..... ing authority relying on Rule 5B of the Cenvat Credit Rules, 2004 read with Notification No.12/2004-CE (NT) dated 03/03/2014. Notification No.12/2014-CE (NT) provides as follows: "Safeguards, conditions and limitation (a) the refund shall be claimed of untilized Cenvat Credit taken on inputs and input services during the year for which refund is claimed, for providing following output services namely:- (i) Renting of a motor vehicle designed to carry passengers on non-abated value, to any person who is not engaged in a similar business; (ii) Supply of manpower for any purpose or security services; or (iii) Service portion in the execution of a works contract. 1.1 The original adjudicating authority held that the appellants are reg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, not entitled to refund. The Commissioner (Appeals) also holds that the appellants are not entitled to Cenvat Credit as the final products manufactured by them is not excisable. 2. Ld. Counsel for the appellant relied on the decision of Hon'ble High Court of Himachal Pradesh at Shimla in the case of Drish Shoes Ltd. 2010 (254) ELT 417 (HP). According to him the said decision has been upheld by the Hon'ble Apex Court on 12/07/2016 relying on the decision of Hon'ble High Court of Bombay in the case of Sharp Menthol India Ltd., 2011 (270) ELT 212) which has been approved by the Hon'ble Apex Court vide order dated 04/04/2012 Copy of the said order was produced by the Ld. Counsel in the Court. 2.1 He argued that in these circ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reported 2015 (320) ELT A104. In the said decision of the Hon'ble High Court in para 27 & 28 of the said decision the Hon'ble High Court has observed as follows: 27. The argument of the Revenue that in the present case, the credit of duty paid on menthol is not allowable or has lapsed for the reason that the duty paid menthol has been used in the manufacture of exempted menthol crystals cannot be accepted, because, admittedly the exempted menthol crystals have not been cleared for home consumption but have been cleared for export under bond and, therefore, Rule 6(1) to 6(4) of 2004 Rules would not apply, but Rule 6(6)(v) would apply. In other words, non allowability of input credit under Rule 6(1) to 6(4) of 2004 Rules is applica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t was followed by the Hon'ble High Court again in the case of Mahindra & Mahindra 2014 (321) ELT 51. 4.2 In view of the above, the Cenvat Credit cannot be denied as the final product "fruit pulp" is chargeable to Nil rate of duty as per tariff, exported by the appellants. 5. The second issue relates to the appellants being providers of service or not in terms of Rule 5B of the Cenvat Credit Rules. The appellants have claimed that they are paying service tax on following four services on reverse charge basis. (a) Security/detective agency service (b) Manpower recruitment/supply agency service (c) Works Contract Service (d) Other taxable services other than the 119 listed and as GTA and under Business Auxiliary Service. And the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not engaged in a similar business; ii) Supply of manpower for any purpose or security services; or iii) Service portion in the execution of a works contract (hereafter the above mentioned services will be termed as partial reverse charge services). 5.1 It is clear from the notification and Rule 5B that the said rule and notification are intended solely for the service provider providing specific services. The appellant's claim is that by virtue of Section 68 (2), since liability to pay partial service tax has been imposed on them, they become 'service provider' is misplaced. The Act differentiates between the 'service provider' and 'person liable to pay service tax' under different circumstances. It is poss ..... X X X X Extracts X X X X X X X X Extracts X X X X
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