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TMI Blog2020 (10) TMI 155X X X X Extracts X X X X X X X X Extracts X X X X ..... ter 17011490 & 17031000 of the Schedule to the Central Excise Tariff Act, 1985. During the course of audit of records under EA-2000, the department observed that the appellant had availed Cenvat credit amounting to Rs. 30,00,000/- on the strength of the invoice issued by M/s Dnyaneshwar Trust. On verification of the said invoice, the department further observed that the amount mentioned therein was paid as per the stay order NO. S/375/14/CSTB/C-I dated 21.04.2014. Taking up Cenvat credit of such amount was disputed by the department on the ground that pre-deposit made pursuant to stay order dated 21.04.2014 cannot be considered as "service tax" and as such, availment of Cenvat credit is not in conformity with Rule 3(1)(ix)(b) of the Cenvat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the order passed by the appellate forum. Thus, he submits that taking of Cenvat credit on the pre-deposit amount by the appellant is not in conformity with the Cenvat statute. To support such stand, the learned AR has relied upon the judgment of Hon'ble Bombay High court in the case of Suvidhe Ltd. Vs. Union of India - 1996 (82) E.L.T. 177 (Bom.), Nelco Limited Vs. Union of India - 2002 (144) E.L.T. 56 (Bom.) and the decision of this Tribunal in the case of Hindustan Zinc Ltd. Vs. Commissioner of Central Excise, Jaipur-II - 2013 (292) E.L.T. 260 (Tri.-Del.). 5. Heard both sides and perused the records. 6. The short question involved in this appeal for consideration by the Tribunal, is whether amount paid as pre-deposit under Section 35F i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vided by M/s Shri Dnyaneshwar Trust is not confirming to the definition of taxable service provided under the Finance Act, 1994 for consideration as provision for the output service. In view of the fact that Rule 3 of the rules does not consider the amount of pre-deposit as service tax for availment of Cenvat credit by the manufacturer/service provider, taking of such credit by the appellant is not proper and justified. Thus, the service tax demand confirmed by the original authority and upheld in the impugned order cannot be faulted with. 8. I find that the department has invoked the provisions of Section 11AC of the Central Excise Act, 1944 for imposing mandatory penalty on the appellant. Insofar as invocation of the said statutory provi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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