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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 ..... s not specifically finding any place in Rule 3 ibid, taking of such amount as Cenvat credit is contrary to such statutory provision and hence, denial of Cenvat benefit in the present case by the authorities below is in conformity with the statutory provisions - 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. The department has invoked the provisions of Section 11AC of the Central Excise Act, 1944 for imposing mandatory penalty o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... against the impugned order dated 05.07.2018 passed by the Commissioner of GST and Central Excise (Appeals), Nashik. 2. Briefly stated, the facts of the case are that the appellant is engaged inter alia, in the manufacture of sugar and molasses falling under Chapter 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 ₹ 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 Ce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ices. By referring to the said rule, the learned AR submits that pre-deposit made under Section 35F of the Central Excise Act, 1944 is not finding any place in Rule 3 ibid, entitling a manufacture/service provider to avail credit of the amount of pre-deposit made pursuant 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ainst it on the ground that services provided by it should not fall under the scope or ambit of Finance Act, 1994 for levy of service tax there on. The plea made by such appellant before the Tribunal was upheld vide the Final order dated 03.08.2017, holding that the services provided 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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