M/s. Rishiroop Polymers Pvt. Ltd. Versus CCGST, Mumbai South
Service Tax
2019 (1) TMI 510 – CESTAT MUMBAI – TMI
CESTAT MUMBAI – AT
Dated:- 21-12-2018
Appeal No. ST/86636/2018 – A/88167/2018
Service Tax
Dr. Suvendu Kumar Pati, Member (Judicial)
Shri Rajiv Luthia, CA for the appellant
Shri O.M. Shivdikar, AC (AR) for the respondent
ORDER
Denial of cenvat credit on service tax paid against unregistered premises taken on rent is the subject matter of this appeal.
2. Brief facts of the case is that appellant is a Private Ltd. Company engaged in manufacturing and providing services as commission agent for principals located outside India against which it receives commission charges in convertible foreign exchange. Appellant availed cenvat credit on service tax paid on input services of renting of immovable property namely premises no. 67 at Atlanta, Nariman Point, Mumbai and premises no. 65. Input credit against premises no. 67 was refused as it was unregistered p
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or reversal of cenvat credit as per Rule 6(3) of Cenvat Credit Rules, it should not have refused credit on renting of premises. Referring to the orders-in-original passed in respect of both the show-cause notices vide annexure 7 and 8, the ld. Counsel for the appellant also argued that principle of equity and fair play demand that the department should stick to its stand and not to jumble up different provisions in demanding duty from both the counts. Referring to judicial decision in the case of CST vs. Pangea 3 Legal Database Systems Pvt. Ltd. and order passed by this Tribunal on 02.08.2018 in respect of the same issue of the appellant for the subsequent period, the ld. Counsel for the appellant submitted that credit availed by the appellant against renting of unregistered premises was admissible for which he prays for setting aside the order of the Commissioner (Appeals).
4. In response to such submissions, ld. AR for the department has not only supported the reasoning and rational
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er-in-original concerning reversal of cenvat credit under Rule 6(3)(1), the adjudicating authority vide order dated 23.08.2016 in para 15 has given his finding that the assessee had not submitted any documentary evidence to support the claim that premises no. 67 is not used for providing exempted services or manufacturing activities and ultimately he confirmed the reversal of proportionate credit as demanded in the show-cause. If this is the finding of the adjudicating authority, it is not understood as to how, he being the same person in position passed another order just two days before on 23.08.2016 stating that renting of premises at unit no. 67 has no nexus with the output service which is provided by the assessee from unit no. 65. Admittedly, appellant has reversed the credit basing on Rule 6(3) of Cenvat Credit Rules in proportion to its dutiable and exempted services. This being the factual position and the documents on record, it cannot be said that appellant is to be penalise
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