Custom, Excise & Service Tax TribunalCommissioner Of Central Excise, Nagpur vs M/S. Tarang Engineering Pvt. Ltd on 6 April, 2016IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL
WEST ZONAL BENCH AT MUMBAI
COURT  NO.
Appeal No. E/2186/2010
                  E/CO-22/2012
(Arising out of Order-in-Appeal No. SR/310/NGP/2010 dated 27.09.2010 passed by the Commissioner  (Appeals) Central Excise & Customs, Nagpur. )

For approval and signature:
Honble Shri Ramesh Nair, Member (Judicial)

======================================================1.	Whether Press Reporters may be allowed to see	   :   No
	the Order for publication as per Rule 27 of the
	CESTAT (Procedure) Rules, 1982?

2.	Whether it should be released under Rule 27 of the   :   No
	CESTAT (Procedure) Rules, 1982 for publication 
      in any authoritative report or not?

3.	Whether Their Lordships wish to see the fair copy      :  Seen 
	of the Order?

4.	Whether Order is to be circulated to the Departmental : Yes
	authorities?

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Commissioner of Central Excise, Nagpur
:
Appellant



VS





M/s. Tarang Engineering Pvt. Ltd. 
:
Respondent

Appearance

Shri H.M. Dixit, Assistant Commissioner (A.R.) for Appellant

Shri D.H. Nadkarni, Advocate for respondent

CORAM:

Honble Shri Ramesh Nair, Member (Judicial)

            Date of hearing :  06/04/2016
                                Date of decision:  06/04/2016

ORDER NO.

	
	Per : Ramesh NairThe appeal is directed against the Order-in-Appeal No.SR/310/NGP/2010 dt. 27.9.2010 passed by Commissioner (Appeals) Central Excise, Customs and Service Tax, Nagpur whereby the Ld. Commissioner setting aside the Order-in-Original No.11/SPM/ADC/ST/2010 dt. 5.8.2010 allowed the appeal of the respondent.2.	The issue involved in the present case is whether the respondent is entitled to avail Cenvat Credit in respect of supplementary invoice issued by the service provider for payment of service tax for the past period.  The adjudicating authority denied the Cenvat Credit on the ground that as per Rule 9(1)(b) of Cenvat Credit Rules 2004, Cenvat credit on supplementary invoice cannot be allowed when the payment of service tax is not made due to the reason of suppression of facts, fraud, collusion, wilful mis-statement etc. In the impugned order, Ld. Commissioner (Appeals) allowed the Cenvat Credit on the ground that the restriction provided under Rule 9(1) (b) of Cenvat Credit Rules was not applicable in respect of service tax paid whereas the same was applicable to the inputs and capital goods.3.	Shri H.K. Dixit, Ld. Assistant Commissioner (A.R.) appearing on behalf of the Revenue reiterating the grounds of appeal, submits that the only provision for allowing the Cenvat Credit on supplementary invoice is provided under Rule 9(1) (b). In the present case Cenvat Credit was availed on supplementary invoice. The Rule 9(1) (b) shall apply mutatis mutandis in respect of service tax also.4.	On the other hand,  Shri D.H. Nadkarni, Ld. Counsel appearing for the respondent submits that the period involved in the present case is July 2005 to January 2009 and during that period Rule 9(1) (b) of Cenvat Credit Rules,2004 restricted the Cenvat Credit in case of  supplementary invoice only for the credit related to input or capital goods.  As regard restriction in respect of service tax the specific amendment was made by insertion of Sub-clause (bb) in Rule 9(1) of Cenvat Credit Rules w.e.f. 1.4.2011.  He submits that on the identical issue this Tribunal has given various decisions as follows:(i)	Ispat Industries Ltd. Vs. Commissioner of Central Excise Raigad2008 (221) ELT 540 (Tri.-Mumbai)(ii)	JSW Steel Ltd. Vs. Commissioner of Central Excise Salem 
      2008-TIOL-2351-CESTAT-MAD.(iii)	 Delphi Auomotive Systems (P) Limited Vs. Commissioner of Central Excise, Noida
      2013-TIOL-1793-CESTAT-DEL5.	I have carefully considered the submissions made by both the sides. I find that during the relevant period of this case, Rule 9(1) (b) of Cenvat Credit Rules, 2004, does not put any restriction for availing the  Cenvat  Credit on the supplementary invoice in respect of input services received by the assessee.  Admittedly, the restriction was brought by insertion of Sub-clause (bb) of Rule 9(1) of Cenvat Credit Rules w.e.f.  1.4.2011. Therefore prior to 1.4.2011 the credit cannot be denied borrowing the restriction provided in unamended Rule 9(1). This proposition has been endorsed by the various Tribunal decision as cited by the Ld. Counsel.  I, therefore, do not find any infirmity in the impugned order passed by the Ld. Commissioner (Appeals), hence the same is upheld.  Revenues appeal is dismissed. Cross-objection stands disposed of accordingly.(Pronounced & Dictated in court)

 

                (Ramesh Nair)             
               Member (Judicial)

SM.4Appeal No. E/2186/2010
                 								                 E/CO-22/2012