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TMI Blog2023 (5) TMI 891X X X X Extracts X X X X X X X X Extracts X X X X ..... reon. The issue with regard to consideration of the disputed services as defined Input Service is no more res integra in view of the decisions relied upon by the Ld. Advocate for the appellant. Therefore, as per the settled principal of law, denial of Cenvat Credit on this ground also is not sustainable. As the appeal in respect of the first three show cause notices have been allowed, these proceedings which are sequel to the earlier proceedings need also to be considered in the light of the above order and allowed. Appeal allowed. X X X X Extracts X X X X X X X X Extracts X X X X ..... e appellant for the period 2015-16 to 2017-18 (Upto June 2017) asking them to show cause as to why:- "(i) Cenvat Credit amounting to Rs.25,25,269/- (Rupees Twenty Five Lakhs Twenty Five Thousand Sixty Nine wrongly availed and distributed by them as detailed in Para (3) above, to various manufacturing units would not be disallowed and recovered from them under Rule 14 of the Cenvat Credit Rules, 2004 read with the provisions of Finance Act, 1994; (ii) Interest should not be demanded & recovered from them under Rule 14 of Cenvat Credit Rules, 2004 read with Section 75 of Finance Act, 1994; (iii) Penalty should not be imposed upon them under Section 76 and 77 of the Finance Act, 1994, read with Rule 15(1) of the Cenvat Credit Rules, 2004." 3.1 I have heard Shri Somesh Jain, Advocate, for the appellant and Shri Nitin Ranjan, Deputy Commissioner, Authorised Representative for the Revenue. 3.2 In the impugned order, the Commissioner (Appeals) has while deciding the appeal observed as follows:- "6. I have gone through the facts of the case, records placed in the file and submissions made during the course of personal hearing. The issues involved in the appeal are- (i) whet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... put service and output service and whether they are used in output services provided. Various appellate authorities, Hon'ble High Courts and Apex Court also have discussed the relevancy and eligibility of Cenvat credit. The definition of input services cannot be stretched to such an extent that it becomes practically illogical. If such an extended meaning is given to the said definition so as to include all the activities of the appellants, whether or not relatable to his business, the definition would lose its meaning, intended to be given by the legislation. I find that the exclusion clause, which was absent earlier, inserted vide Notification No. 28/2012-CE (NT) dated 20.06.2012 with effective from 01.07.2012 in Rule 2(1) of the Cenvat Credit Rules, 2004 specifically excluded certain services. CBEC vide Circular No 943/04/2011 dated 29.4.2011 at para 2 while clarifying on the subject matter e Clarifications issued relating to Cenvat Credit, observed that the list is only illustrative. The principle is that Cenvat credit is not allowed when any goods or services-were used primarily for personal use or consumption by employees. Further with effect from 01.07.2012, an elaborati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... explicable that if the impugned service was used by functionaries/officials/employees of the company for commutation for providing output service, there must be some documentary evidence to that effect. I find that the appellant has submitted illustrative invoices from which it is not forthcoming that such expenses were not incurred by employees for personal use. Since they failed to produce the relevant documentary evidences which can substantiate the fact that these services were actually used for providing their output service and these services were having nexus with the output services provided by them, no relief can be extended to the appellant. 7.2 In respect of the input services, mentioned above, it is observed that in terms of sub-rule(5) and sub-rule(6) of Rule 9 of Cenvat Credit Rules 2004 the burden of proof regarding admissibility of the credit shall be upon the person taking such credit when the tax liability is discharged on the basis of self assessment and on the basis of records maintained by the appellant. The onus is on the appellant to prove that the services had actually gone into the consumption for providing those output service. The appellant has also f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 14 ibid. The said statutory provision mandates that irregularly availed or utilized Cenvat Credit can be recovered from the manufacturer or the provider of output service. In this case, the corporate office of the appellant is registered with the service tax department as an Input Service Distributor and distributed the Cenvat Credit in respect of service tax paid on the input services among its manufacturing units. It is not the case of the department that the appellant is either avails or utilizes the Cenvat Credit of service tax paid on the input services. Input Service Distributor neither provides any service nor engages in manufacture of excisable goods. Thus, the question of payment of service tax or Central Excise duty on the taxable services or the manufacturing activities respectively do not arise. The provision of Rule 14 is applicable only to the manufacturer or service provider and not to the Input Service Distributor, who merely distributes the credit. Since, the provisions of Rule 14 ibid was invoked for effecting recovery of the Cenvat Credit amount from the appellant, such proceedings initiated by the department are not in conformity with the Cenvat statute and ac ..... X X X X Extracts X X X X X X X X Extracts X X X X
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