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TMI Blog2022 (12) TMI 970X X X X Extracts X X X X X X X X Extracts X X X X ..... ing found, is not a fact that would disentitle them from the Cenvat Credit. Appeal allowed. - Excise Appeal No.181 of 2012-SM with Excise Appeal No.298 of 2012 - Final Order No. A/12214-12215/2022 - Dated:- 15-12-2022 - MR. RAJU, MEMBER (TECHNICAL) Shri. Dhaval Shah, Advocate for the Appellant Shri. Rajesh K Agarwal, Superintendent (AR) (AR) for the Respondent ORDER These appeals have been filed by M/s. Transpek Silox Industry Ltd against denial of Cenvat Credit availed by them. 2. Learned Counsel pointed out that the appellant has four different manufacturing units and the Head Office of the appellant is located in Vadodara along at the same place with one of the appellant unit. The head quarter availed Cenva ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... observed as follows:- 4 . I have carefully considered the submissions made by both the sides and perused the records. There is no dispute in the facts of the case that the common input service is attributed to both the units Koshamba Unit as well as Jambusar Unit and credit was taken in one unit i.e. at Koshamba Unit. The issue to be decided is that whether the appellant in their Koshamba Unit is eligible for credit only proportion of the common input service attributed to the said unit only and they are not entitle for the Cenvat credit to the proportion attributed to Jambusar Unit in terms of Rule 7(d) of Cenvat Credit Rules, 2004. In this regard, I have gone through the judgments cited by the appellant. The judgments and its relev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... able to service used in a unit exclusively engaged in manufacture of exempted goods or providing of exempted services shall not be distributed; (c) credit of service tax attributable to service used wholly in a unit shall be distributed to the unit; and (d) credit of service tax attributable to service used in more than one unit shall be distributed pro rata on the basis of the turnover during the relevant period of the concerned unit to the sum total of the turnover of all the units to which the service relates during the same period. 9. From reading of the above Rules both pre and post amendment, it would be noticed that both provisions give an option to the assessee concerned whether to distribute input services tax ava ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated 28-2-2019 is reproduced below : 4. Having considered the rival contentions and following the decision by the Bombay High Court in the case of M/s. Oerlikon Balzers Coating India Pvt. Limited (supra) I hold that the unit has not done any illegality in distributing more credit to a particular unit, as Rule 7 provides may which has been amended subsequently w.e.f. 1-4-2016 to the effect shall distribute. Further, I find that on the issue of revenue neutrality also, the show cause notice is bad in law. I accordingly, set aside the impugned order and allow the appeal with consequential benefit, in accordance with law. 7. In view of the aforesaid orders, the impugned order dated 1-11-2017 is not sustainable . In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... certain conditions. If he chooses to distribute, he will have to follow all the conditions laid down therein including clause (d) which mandates that such distribution be done on pro rata basis. In 2016 the word may was changed to shall thereby making it mandatory for an assessee to distribute the credit between Units. I, therefore, find that the assessee has not violated the CENVAT Credit Rules as they existed during the period by not distributing the credit of Service Tax for common services between two Units. Consequently neither the demand nor the penalty sustain. The appeal is allowed accordingly . The facts of the instant case as well as the nature of dispute is similar. 5. Moreover, it is seen that no objection regarding ..... X X X X Extracts X X X X X X X X Extracts X X X X
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