2018 (3) TMI 691 – CESTAT AHMEDABAD – TMI – CENVAT credit – input service – Man-power supply service – case of appellant is that once the service tax was paid and the invoices issued indicating the payment of such service tax, the appellant are eligible to take credit of the service tax paid as the said services are used in or in relation to manufacture of finished goods – the amount which the service provider paid whether to be consider as a deposit or service tax for deciding the eligibility of credit? – Held that: – the issue is more or less settled in the case of Commissioner of Central Excise, Ahmedabad-III Versus Nahar Granities Ltd. [2014 (5) TMI 57 – GUJARAT HIGH COURT], where it was held that a manufacturer would be entitled to avail the cenvat credit in respect of the inputs used for the manufacture of a final product or in providing taxable service of the excise duty specified in First Schedule to the Excise Tariff Act – appeal allowed – decided in favor of appellant. – App
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ice recipient whereas, the service provider was required to pay 25% of the service tax liability, instead, since the service provider had paid the entire service tax amount(100%), therefore, the appellant are not eligible to avail credit of the service tax paid by the service provider, consequently, demand notice was issued for recovery of the credit with interest and penalty. On adjudication, the demand was confirmed with interest and penalty. The appellant thereafter filed an appeal before Ld. Commissioner (Appeals) who in turn, rejected their appeal. Hence the present appeal. 4. Ld. Advocate for the appellant submits that they have availed credit of the service tax paid against the invoices issued by the service provider and hence it is immaterial whether the entire amount of service tax was paid by service tax provider or by the appellant while availing the credit on the same. He submits that the amount of service tax paid by the service provider cannot be considered as a deposit a
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has submitted that the proviso itself prescribes the condition to avail credit of the service tax paid on reverse charge mechanism mentioning that only after the service tax amount paid or payable is indicated in an invoice or bill in accordance with Rule 9 of the Cenvat Credit Rules, 2004, then only credit could be admissible. Since in the present case, the entire amount of service tax paid has been indicated in the invoice, therefore, they are eligible to take credit of the service tax paid. 6. I find that the appellant though required to pay 75% of the service tax liability, on receiving the man-power supply service from the service provider, however, initially the entire amount of service tax was paid by the service provider and later recovered from the appellant by indicating the same in the invoice. I find that the amount which the service provider paid whether to be consider as a deposit or service tax for deciding the eligibility of credit has been more or less settled by the
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he excise duty specified in First Schedule to the Excise Tariff Act. Insofar as the respondent is concerned, he had purchased the inputs and utilised the same for manufacture of a final product. Such goods were duty paid. Rules 3 and 4 of the Cenvat Credit Rules, 2004, thus would enable him to avail the Cenvat credit. It is a different thing that the supplier of the goods to the respondent paid excise duty on such product under mistaken belief. In law as declared by the Supreme Court in case of Collector of Central Excise, Patna v. Tata Iron and Steel Co. Ltd. (supra), no duty was payable on such product. Strictly speaking therefore, such amount deposited by the original manufacturer would not partake the character of excise duty. However, when the department did not dispute the classification of such manufacturer, accepted the declarations and duties, Cenvat credit on such duty cannot be declined to the purchaser of the goods who otherwise fulfilled all conditions tor availing Cenvat
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