9911796707
TMI Blog2025 (3) TMI 572X X X X Extracts X X X X X X X X Extracts X X X X ..... ation, the Ld. Commissioner of Service Tax, Service Tax-II Commissionerate, Kolkata has confirmed the demands of Rs.57,68,603/- Rs.2,67,077/- and Rs.85,692/- against the appellant and imposed Rs.61,21,372/- as penalty under Section 78 of the Finance Act, 1994. He also ordered for payment of interest by the appellant, amounting to Rs.24,88,246/- under Section 75 of the Finance Act, 1994. 2. Aggrieved by the confirmation of the said demands, the appellant has filed this appeal. 3. In respect of the demand of Service Tax of Rs.57,68,603/-, the appellant submits that the Department has considered the availment of CENVAT Credit in respect of setting up of cement plant as 'irregular' on the ground that the expression "setting up" has been omitted from the definition of "input service" w.e.f. 01.04.2011. In this regard, the appellant points out that they have taken CENVAT Credit in respect of only such taxable services which are eligible for CENVAT Credit; they have not taken CENVAT Credit in respect of civil works used in the construction of the cement plant. The appellant submits that they have availed CENVAT Credit in respect of services such as banking and other financial services, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pellant has submitted that they have already paid Service Tax on this count vide GAR Challan dated 03.08.2012 (wrongly mentioned by the Ld. Commissioner as 08.03.2012) and hence, the demand confirmed on this count is not sustainable. 3.3. With regard to the demand of interest amounting to Rs.24,88,246/-, it has been submitted by the appellant that they were always having excess CENVAT Credit lying in their CENVAT Credit account over and above the credit availed and utilised by them. Further, they submit that the service tax demand confirmed in the impugned order is not sustainable; When the demand of service tax is not sustained, the question of demanding interest does not arise. Accordingly, they prayed for setting aside the demand of interest confirmed in the impugned order. 4. The Ld. Authorized Representative of the Revenue has reiterated the findings in the impugned order. 5. Heard both sides and perused the appeal records. 6. Regarding the demand of Service Tax of Rs.57,68,603/-, we observe that this amount has been confirmed in the impugned order by denying the CENVAT Credit availed by the appellant on the input services used setting up of cement plant, on the ground tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pinning & Weaving Mills Ltd. (supra) case, all these structural items are as good as spare parts of the capital goods as mentioned in Clause 3 of Section 2(a) of Cenvat Credit Rules, 2004 and thus are eligible inputs/ capital goods for availing credit. The final product in the present case is the sponge iron for which the kiln, burning chamber, conveyor gallery, fabrication of walkways of platform, staircases, shed, etc. are the essential machineries. As per appellant, none of these machinery can put to use unless and until the impugned structure is there to support the said machinery as the machinery cannot be held suspended in the air. Thus, these structures are not merely the structural support to these machines but very much become the integral part of these machines manufacturing the final product. The perusal of earlier Order-in-Original reflects that the Department had initially observed that, all the machines in sponge iron plant can become operational or can function only when the design and layout parameters are met. Such design and layout parameters specify the location, height, angle of inclination of the machines and alignment with other related machinery so that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Rs.57,68,603/- confirmed in the impugned order. 7. Regarding the demand of Service Tax of Rs.2,67,077/-, we observe that the appellant have already paid Service Tax of Rs.2,34,520/- and enclosed a Chartered Accountant certificate to that effect. Regarding the balance amount of Rs.32,557/-, the appellant submitted that they have availed Cenvat credit of Rs.32,557/- on Debit Notes for rent ( reimbursement of electricity charges). We observe that the Debit Notes contain all details as prescribed under Rule 4A of Service Tax Rules, 1994. Accordingly, we hold that the Cenvat credit availed by the appellant on the basis of 'Debit Notes' cannot be denied. In support of this findings, we rely upon the decision in the case of Gates Unitta Indian Company Pvt. Ltd. Vs Commissioner of GST & Central Excise, Chennai reported in 2021 VIL 457 CESTAT CHE-ST . We also observe that this issue is also no more res integra as the Tribunal has allowed the credit availed on the basis of debit notes issued, in the case of M/s. Tata Steel Ltd. v. Commissioner of C.Ex. & S.T., Jamshedpur [Final Order No. 76233 of 2024 dated 28.06.2024 in Excise Appeal No. 75590 of 2014 - CESTAT, Kolkata] wherein it has ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
