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TMI Blog2024 (3) TMI 1367X X X X Extracts X X X X X X X X Extracts X X X X ..... n, that the service provider unit at Head Office had Service Tax liability every year, which was paid in cash and that the entire tax liability was paid in cash every year rather than paying through the CENVAT Credit, the lower authorities have not denied anywhere the above facts.' In view of the decision of the Chennai Bench which squarely is applicable to the facts of present case, there are no merits in the impugned order - Appeal allowed. - HON BLE MR. P.K. CHOUDHARY, MEMBER (JUDICIAL) AND HON BLE MR. SANJIV SRIVASTAVA, MEMBER (TECHNICAL) For the Appellant : Shri Vinay Kansara, Advocate For the Respondent : Shri Sandeep Pandey, Authorised Representative ORDER SANJIV SRIVASTAVA: This appeal is directed against the impugned Order-in-Appeal No. NOI-EXCUS-002-APP-772-2021-22 DATED 08.11.2021 of Commissioner Central GST Central Excise (Appeals), NOIDA. By the impugned order following has been observed: 5.1 Rule 7 of the CCR, 2004 w.e.f 2012 is reproduced below: 7. Manner of distribution of credit by input service distributor.-The input service distributor may distribute the CENVAT credit in respect of the service tax paid on the input service to its manufacturing units or unit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efinition. 5.4 I find that the appellant has relied upon following case laws; a. CGST, Pune I v/s M/s Oerlikon Balzers Coating India Pvt. Ltd. 2019 (366) ELT 624 (Bom) b. M/s Titan Industries Ltd. v/s CCE ST, Chennai 2019-TIOL-2525-CESTAT-Mad. I have gone through the judgments. I find that adjudicating authority has rightly observed that these judgment pertains to the period prior to the amendments made in CCR, 2004 in 2012. Thus the ratio of these judgments are not applicable in the instant case. 5.5 I also find that the appellant has brought the concept of Revenue neutrality in their case, but I do not find any force in the aforesaid argument of the noticee as ISD was required to distribute the CENVAT credit as per statutory provisions of CCR, 2004, which they failed to comply. 2.1 The appellant is engaged in the manufacture of excisable goods and are availing credit of inputs and capital goods, input services under the CENVAT Credit Rules, 2004. 2.2 The Head Office of the appellant is located in Thane, which is registered as ISD, for the distribution of ISD credit. During audit of Head Office-Thane Unit it was observed that the distributor had distributed common credit amongst i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Central Excise Act, 1944 as well as provisions of Section 174 of the CGST Act, 2017 The dues adjudged above shall be paid forth with. 2.5 Appeal filed by the appellant before the first appellate authority has been dismissed as per the impugned order. 2.6 Aggrieved appellant has filed this appeal. 3.1 We have heard Shri Vinay Kansara, Advocate for the appellant and Shri A K Choudhary, Authorized Representative for the revenue. 3.2 Arguing for the appellant learned counsel while making detailed submission on the merits of the case, placed on record Final order No 40021/2023 dated 31.01.2023 whereby the same issue in the appellants unit located in Tiruchirapalli has been decided by the Chennai Bench. 3.3 Arguing for revenue learned authorized representative re-iterated the findings recorded in the impugned order. 4.1 We have considered the impugned order along with the submissions made in appeal and during the course of arguments. 4.2 The only issue that has to be decided in the present case is whether the disallowance of credit in the hands of the appellant which was distributed by their Head Quarter at Thane as Input service distributor is correct or otherwise. 4.3 We find that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ring the period the other units were also discharging service tax liability in cash also. Therefore, the entire exercise would have been revenue neutral. Hence we hold that rejecting the claim of Cenvat credit of the appellant is unsustainable and liable to be set aside and we do so. The Hon ble Bombay High Court, thereafter, vide its judgement against the above order of CESTAT Mumbai [2019 (366) E.L.T. 624 (Bom.)], has upheld the above order of the Tribunal and the Hon ble Court has also looked into the amended Rule 7 of the CCR. 8. Further, I also find that in the following cases, it has been held that recovery / demand cannot be raised at the recipient s end:- (i) M/s. V.G. Steel Industry v. Commissioner of Central Excise [2011 (271) E.L.T. 508 (P H)]; (ii) M/s. Titan Industries Ltd. v. Commissioner of Central Excise Service Tax, Chennai [2019-TIOL-2525-CESTAT-MAD] 9. It is also the settled position of law that the Show Cause Notice in the case on hand has been served beyond the normal period, for which the only allegation levelled is wilful suppression with an intent to evade tax, but however, no supporting document/evidence is placed on record to justify suppression by the app ..... X X X X Extracts X X X X X X X X Extracts X X X X
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