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TMI Blog2018 (2) TMI 129X X X X Extracts X X X X X X X X Extracts X X X X ..... ding exempted services? Held that: - The Rule 6(5) of the Cenvat Credit Rules, 2004 covers the input services of banking and other financial services and specifically allows the credit of input services, even if they are partly used for the provision of taxable activities. The respondent has filed the breakup of their turnover during the relevant financial year which has been quoted hereinabove. From the perusal of the turnover, it is evident that the major part of the turnover is with respect to manufacture and clearance of dutiable packaged software which is almost 50% of the total turnover. Thereafter the balance turnover is with respect to exempted goods customised software and for services - the respondent has utilised the cenvat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such software sold from such premises. The respondent is also registered with the central excise authorities at the premises of 202-203, 2nd Floor, Trade Avenue, Suren Road, Chakala, Andheri (E) from where export of packaged software is carried out. 2.1 The respondent has a centralised registration for the payment of service tax on services provided as well as services received from the foreign service providers. The respondent is also registered as an Input service distributor (ISD) at its head office located at Malkani Chambers, 1st Floor, Off Nehru Road, Vile Parle E for the purposes of distributing the credit of input services received by the ISD to its manufacturing and service providing locations. 2.2 The respondent had issued F ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Total 86,62,24,031 /- 130,07,83,705 / 2.4 The respondent received the show cause notice no. F.No. V-(Adj)(Misc) 30-25/2008/241 dated 02-05-2008 whereby the cenvat credit availed of the service tax paid on the services received in relation to the FCCB issue is sought to be denied primarily on the ground that the No-correlation has been provided nor any documentary proof has been produced to establish that the said services are used in the manufacturing process of packaged goods manufactured and cleared from the factory and have not been exclusively used in the manufacturing of exempted goods or exempted services. 2.5 The respondent submitted the reply and attended PH in respec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for overseas direct investments in new joint ventures and/or wholly owned subsidiaries, for capital expenditure for technology upgrade and any other use permitted under the applicable laws and regulations. The learned Commissioner has wrongly concluded that the activity of issuing FCCB for which taxable services under the head banking and other financial services was received, is squarely covered under the definition of input service and was relating to financing the business in India. Thus the learned Commissioner has erred by generalizing the issue instead of deciding it with reference to the particular noticee/respondent. 4. In reply, the learned counsel for the respondent states the definition of input service specifically allows a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t aside. 4.2 The ld. Commissioner in para 4.2 has further held that it is an undisputed fact that FCCB have been issued for the expansion of their manufacturing business and providing service in India. The revenue in their grounds of appeal had not adduced any evidence to prove the contrary, therefore, the basis of filing the Revenue appeal is not correct. Thus, the credit is admissible to the respondent and the department's appeal needs to be set aside. The respondent has submitted the utilization statement at the time of Personal Hearing to prove the utilization of the FCCB proceeds. 4.3 The Rule 6(5) of the Cenvat Credit Rules, 2004 covers the input services of banking and other financial services and specifically allows the cr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... L.T. 302 (Tri. - Del.) VI AMUL CRANKSHAFT PVT. LTD. - 2016 (341) E.L.T. 433 (Tri. - Ahmd.) VII MOTHERSON SUMI ELECTRIC WIRES - 2012 (278) E.L.T. 177 (Kar.) 4.5 Without prejudice to the above, the Jurisdiction to issue SCN is that the input service distributor. The para 2 of the SCN admits that the credit is availed on the ISD invoices. Therefore, the determination of the eligibility as well as correctness of the credit has to be seen at the end of the ISD and not at the end of the respondent's unit who has availed the credit. The respondent relies on the following judgments: GODFREY PHILIPS INDIA LTD. - 2009 (14) S.T.R. 375 (Tri. - Ahmd.) UNITED PHOSPHORUS LTD. - 2013 (30) ..... X X X X Extracts X X X X X X X X Extracts X X X X
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