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TMI Blog2024 (6) TMI 441X X X X Extracts X X X X X X X X Extracts X X X X ..... service would be eligible to take the Cenvat Credit for the input services utilized by them for provision of their output service. Thus the Appellant should clearly bring out the details of input services used inside the factory for which they would be eligible to take the credit in the ER 1 Returns. In respect of the job work service, the Appellant would be required to maintain the ST-3 Returns which would show the Cenvat Credit taken for various input services - The nexus is required to be established for allowing cross-utilization of Cenvat Credit. The Adjudicating Authority should keep in mind that while the input tax credit is eligible on account of outward GTA services by the Job Worker as a service provider, the same is not available to him as a manufacturer, when the finished goods are cleared on payment of freight, where they are required to pay the Service Tax on RCM basis. Therefore, if any services such kind have been utilized for job work, the same would not be eligible for transfer to the normal manufacturing Cenvat Credit Account, in view non existence of nexus. These have to be verified from the documentary evidence to be placed by the Appellant. The Adjudicating Au ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... beyond the place of removal and also on account of other post manufacturing activities like maintenance repairing of tools at various sites of the Steel plants like TISCO Site, Bhilai Steel Plant and other units located at Jamshedpur, Vishakhapatnam, Rourkela, Orissa etc. Therefore, on the ground that the services are not falling within the definition of Rule 2 (l) of Cenvat Credit Rules, 2004 and the Appellant has availed and utilized these credits which are inadmissible, Show Cause Notice was issued. Apart from that some other allegation are made on the ground that they have paid the Service Tax under Business Auxiliary Service instead of some other Headings. The Show Cause Notice also alleged that even for maintenance service, they have paid the tax on Reverse Charge Basis. Similar allegations were made in respect of Manpower and Security Services also. It was also alleged that in case of GTA services, instead of the Bills of the service providers, they have submitted only calculation sheets of their own along with GAR-7 Challan for payment of Service Tax for both carriage inward carriage outward and Cenvat Credit has been taken irregularly. After due process, the Adjudicating ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot permissible as per Rule 2 (l) of the Cenvat Credit Rules, 2004. He also submits that the Appellant has provided on site services to various Steel manufacturer by undertaking job-work in various other cities. They are undertaking job works service (BAS). The Appellant in turn receives various services like Manpower Services, Security Services, Maintenance and Repairing Services etc., for providing their output service. The Learned AR says that these services are provided by the service provider in those Steel Plants and they have absolutely no nexus with the manufacturing activity being carried out in the Appellant s Factory. Therefore, he says that the Appellant would not be eligible for Cenvat Credit for such activities to be utilized for the clearance of their manufactured goods. Accordingly, he justifies the confirmed demand and prays that the present appeal may be dismissed. 8. I have gone through the Appeal Papers and the documentary evidence placed before me along with the Synopsis and case law cited by the Learned Counsel. The findings of the Adjudicating Authority is as under:- 4.2 At the outset I find that the noticee has availed of input service credit of Service Tax t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by any manufacturer or service provider or on the basis of any invoice issued by himself under an input service distributer under rule 4A of the service Tax Rules, 1994. They simply transferred the service tax credit by making an entry 'Service Tax input credit from Service Tax khata during the month of October 2015, November 2015 and December 2015. There is no provision in the Ccnvat credit rules to transfer the credit from one indendent entity to another without any valid duty paying documents. In the instant case the noticee has failed to do so. They simply transferred the acculated credit from their service Tax account to manufacturing account with intent to evade payment of Central Excise duty. I find that to avail input service credit by any manufacturer, the nexus between service and manufacture of goods should be established in terms of rule 2 (l) (ii) of Cenvat credit Rules 2004. In the instant case no such nexus between service and manufacture of finished goods has been established. I find that they have irregularly taken andutilised such input service Tax credit and it is liable to be reversed. 4.4 I find that the definition of input service in terms of Rule 2 (l) of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the service received beyond the place of removal of the final products cleared from the factory. In the instant case the services were not used or received in or in relation to manufacturer of goods, hence credit is not available. 4.6 The noticee admitted in their reply that they are registered with the Service Tax authority under the heading 'Business Auxiliary Service' and providing output services and also receiving of services of goods transport agency service, Manpower Recruitment Agency, Security Service Agency and Services for Maintenance or Repair Services. They have centralized Service Tax Registration AAACW2444BST001. They were also undertaking job works in different steel plants and also availing services of different other service provider namely services received from Goods Transport Services, Manpower Recruitment Agency, Security Service Agency and Services for Maintenance or Repair Services etc. The noticee availed the service tax credit on the service tax paid on the above stated services provided by the various service provider under the heading 'business auxiliary service' and utilized the said credit partially for payment of providing output ser ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es are having nexus with their manufacturing activity so as to make them eligible for the credit. The burden of proof regarding availment of cenvat credit lies on the assessee in terms of rule 9 (5) of the Credit Rules. Here, the appellant have miserably failed to discharge such burden of proof. In that view of the matter, I find that they are not eligible for the credit of Rs. 41,00,000/-. [Emphasis supplied] 11. From the detailed findings given by both the authorities, it is observed that the Appellant has not been able to provide proper documentary evidence and explanation to these authorities in support of their case. In the interest of justice, I take a view that the Appellant should be given an opportunity to present all the factual details and documentary evidence before the Adjudicating Authority very clearly specifying as to how they are eligible for taking the Cenvat Credit. The Adjudicating Authority should take into consideration the fact that the Appellant is registered as manufacturer in the Central Excise Department where they are eligible for all the input services used by them which are used in or in relation to manufacturing and clearing activities up to the place ..... X X X X Extracts X X X X X X X X Extracts X X X X
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