9911796707
TMI Blog2019 (3) TMI 105X X X X Extracts X X X X X X X X Extracts X X X X ..... reases falling under Chapter Subheading 27 and 34 of Central Excise Tariff Act, 1984 and are availing the CENVAT credit on input, capital goods and input services under the provisions of CENVAT Credit Rules, 2004. During the course of audit of financial records of the appellants by internal audit team of the department, it was observed that the appellants have revenue from sales exports trading. On verification of the details, it was seen that the appellants import certain materials from Germany and Japan into India and the same are bonded in their Customs Bonded Warehouse in their premises at Chennai and the same are exported to their Trading Partners in Sri Lanka viz., M/s. Monara Engineering & Trading Pvt. Ltd. for further supply to thei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... impugned order is not sustainable in law as the same has been passed without properly appreciating the scheme of CENVAT credit as well as by ignoring the binding judicial precedent. He further submitted that the eligibility of CENVAT credit should be determined in the light of the Export Policy of the Government of India and not independently under CENVAT Credit Rules. He further submitted that admittedly, in the present case, appellant has received services from an overseas partner and has paid the service tax under Reverse Charge Mechanism under Section 66A of the Finance Act, 1994. He further submitted that if the CENVAT credit is denied to the appellant, then the appellant shall be entitled to rebate of the service tax paid in terms of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... two options are available, the assessee has choice to avail any one of such option. Further, Notification which permits refunds does not debar availment of credit in case refund is not claimed. He also submitted that it is a settled principle of law that it is an option for the assessee either avail exemption or forgo the same in order to avail credit. For this submission, he relied upon the decision in the case of CCE, Vadodara vs. Narmada Chematur Pharmaceuticals Ltd.: 2005 (179) ELT 276 (SC) wherein the Hon'ble Supreme Court in similar circumstances held that when an assessee does not avail an exemption in order to take credit and when such credit is subsequently held to be wrongly availed, which is exactly equivalent to the amount of du ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Mechanism under Section 66A of the Finance Act, 1994. Further, the appellant has not sought refund or exemption from payment of service tax under any other provisions or Notification and has taken CENVAT credit of the service tax paid. Further, I find that such availment of CENVAT credit of service tax paid on commission should be allowed under CENVAT Credit Rules in view of the Export Policy of Government. Further, the decisions relied upon by the appellant cited supra mainly the decisions in the cases of Monarch Catalyst Pvt. Ltd. and Jotindra Steel & Tubes Ltd. are squarely applicable to the facts of this case. By following the ratio of the above said decisions, I am of the considered view that the impugned order is not sustainable in la ..... X X X X Extracts X X X X X X X X Extracts X X X X
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