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TMI Blog2024 (11) TMI 1131X X X X Extracts X X X X X X X X Extracts X X X X ..... he docks area is appropriately classifiable as 'cargo handling service' and the same are excluded from payment of service tax as per the definition of 'cargo handling service', as defined under Section 65(23) of the Finance Act, 1994. Thus, we hold that the demand confirmed in the impugned order under the category of 'Port Services' is not sustainable. Service rendered by the appellant to M/s. Tata Chemicals Ltd. We observe that the actual service rendered by the appellant is transportation of goods. M/s. Tata Chemicals Ltd., being a registered company, paid the freight and therefore, in terms of Sub-clause (V) of Rule-2(1)(d) of Service Tax Rules, 1994, we observe that the service recipient is liable to pay service tax on the GTA service under reverse charge basis. Accordingly, we hold that the demand of service tax confirmed in the impugned order under the category of 'port services' is not sustainable and hence the same is set aside. Denial of CENVAT Credit - appellant is having other units but no centralized registration has been obtained and accordingly CENVAT Credit availed on the basis of such invoices was disallowed - We observe that when the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the confirmation of the demands and denial of CENVAT Credit along with interest and imposition of penalty, as mentioned above. 3. The appellant submits that the Ld. Commissioner has passed the impugned Order-in-Original wherein sixty four invoices were mentioned and the services rendered against the said invoices were termed as 'Port Services' falling under Section 65(105) of the Finance Act, 1994 without mentioning nature of services rendered. It has been submitted that on the basis of those sixty four invoices, a total demand of service tax including Education Secondary Higher Secondary Education Cess for Rs. 28,24,469/- was raised. 3.1. The services rendered by the appellant against the said sixty four invoices involve only four service recipients viz.: (a) ESSEL MINING INDUSTRIES LTD. (b) TATA CHEMICLES LTD. (c) GURU SHIPPING CLEARING (d) LEE MUIRHEAD PVT. LTD. 3.2. The appellant submits that out of the 64 invoices, nine invoices pertained to 'Port Services' rendered to M/s. Essel Mining Industries Ltd.; the value of service rendered against the said nine invoices amounts to Rs. 4,33,000/-. The appellant agreed to pay service tax on the said value of service rec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d been obtained and accordingly CENVAT Credit availed on the basis of such invoices was claimed to be irregular. The appellant submits that they are legally entitled to avail CENVAT Credit of service tax paid on the input services received bearing the address of their headquarters. In support their claim, the appellant cited the following decisions: - (i) Doshion Ltd. Vs. Commissioner of Central Excise, Ahmedabad [2013 (288) ELT 291 (TRI. Ahmd.)] (ii) Commissioner of Central Excise, Bangalore-I Vs. Ecof Industries Pvt. Ltd. [2012 (277) ELT 317 (Kar.)], 4.1. Accordingly, the appellant prayed for allowing the CENVAT Credit. 5. The Ld. Authorized Representative of the Revenue, reiterated the findings in the impugned order. She submitted that the appellant has rendered the service within the port area and hence service tax has been rightly confirmed under the category of 'port service'. 5.1. Regarding denial of CENVAT Credit, she submitted that the invoices based on which the credit was availed by the appellant, were not in their name. Accordingly, she supported the denial of CENVAT Credit to the appellant. 6 Heard both sides and perused the appeal documents. 7. In respect of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rvice under reverse charge basis. Accordingly, we hold that the demand of service tax confirmed in the impugned order under the category of 'port services' is not sustainable and hence the same is set aside. 8. Regarding denial of CENVAT Credit amounting to Rs.2,85,577/-, we observe that the adjudicating authority has denied the said CENVAT credit on the ground that the invoices submitted by the appellant for availing the CENVAT credit has the address of their headquarters. We observe that the receipt of the service by the appellant and utilising the same for rendering their output service is not in question. The allegation made in the impugned Show Cause Notice is that the appellant is having other units but no centralized registration has been obtained and accordingly CENVAT Credit availed on the basis of such invoices was disallowed. We observe that when the receipt and utilisation is not in dispute, CENVAT Credit cannot be denied merely on procedural grounds. This view has been held in the following decisions: 8.1. In the case of Doshion Ltd. Vs. Commissioner of Central Excise, Ahmedabad [2013 (288) ELT 291 (Tri. Ahmd.)], the Tribunal, Ahmedabad has held as under: 5. We ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the invoice of ISD does not exceed the amount of Service tax paid. b. Credit of Service exclusively used for exempted goods or exempt service is not distributed. 5. Therefore, the assessee is entitled to distribute the Cenvat credit on the input services on its manufacturing unit or other units providing the output services. The view taken in the order in appeal that the distribution of credit is for the advertisement of the product, which is not at all manufactured at Malur Unit, therefore, cannot be accepted. The finding recorded by the Appellate Authority that the assessee is entitled to take credit only in the unit where the product is manufactured is therefore not the mandate of Rule 7 of the Cenvat Credit Rules. 8.3. Thus, by relying on the decisions cited supra, we hold that the CENVAT Credit amounting to Rs.2,85,577/- availed by the appellant cannot be denied. 9. Since the demand of service tax and denial of CENVAT Credit confirmed in the impugned order is held as not sustainable, the question of demanding interest and imposing penalty on the appellant does not arise. 10. In view of the above discussions, we pass the following order: - (i) The demand of service tax on the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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