At, Customs Excise Service Tax Appellate Tribunal West Zonal Bench At Mumbai
By, THE HONOURABLE MR. ASHOK JINDAL
By, MEMBER (JUDICIAL) & THE HONOURABLE MR. P.R. CHANDRASEKHARAN
By, MEMBER (TECHNICAL)
For the Appellant : Shri. Mihir Deshmukh, Advocate. For the Respondent : Shri.A.K. Prabhakar, Supdt. (AR).
1. The appellants are in appeal along with stay application against the order wherein the inputs service credit on CHA service, port authorities and services of storage and warehousing were denied to the appellant, who is manufacturer of excisable goods on the ground that the appellant have availed these services after removal of the goods from their factory, which is beyond the place of removal.
2. The Ld. Advocate for the appellant submits that the issue has attained finality by the various decisions of this Tribunal preferably in the case of CCE Rajkot Vs. Adani Pharmachem Pvt. Ltd., reported in 2008 (232) ELT 804 (Tri-Ahmd), wherein this Tribunal has held that CHA service is required to facilitate clearance of final products from the place of removal i.e. load port, therefore credit is available.
3. He further submits that the matter traveled upto the Hon’ble Gujarat High Court in the case of CCE&C Vs. Mundra Port and Special Economic Zone Ltd., reported in 2011 (21) STR 361 (Guj) wherein the Hon’ble Gujarat High Court and held that the assessee is entitled to inputs service credit on CHA/Port service, therefore, the issue is no more res integra. In view of this submission we consider that the appeal itself can be disposed of at this stage.
4. On the other hand the Ld. AR submits that as out of total demand of Rs.11,34,668/- the applicant has already made a pre-deposit of Rs.7,47,314/- and the same may be considered as sufficient and stay be granted, but appeal may not be disposed of as he is authorised for disposal of the stay application only.
5. He further submits that the department might have filed an appeal before the apex Court, therefore, the issue is in jeopardy and the appeal may not be disposed of.
6. After going through the decisions cited by the Ld. Counsel specifically in the case of Mundra Port and Special Economic Zone Ltd. (supra) the issue came before the Hon’ble Gujarat High Court, wherein the Hon’ble High Court held as under:-
i) Whether Hon’ble CESTAT has committed error in interpreting the provisions of Cenvat Credit Rules while holding that the Assessee is entited for Cenvat credit of service tax paid on various services, namely, (i) mobile phones (ii) CHA services (iii) Rent-a-cab service (iv) Surveyor charges (v) other input services (such as profession fees, construction, soil testing, labour charges etc.,) and (iv) duty paid on air conditioners?
ii) Whether Hon’ble CESTAT has committed an error in ignoring Circular No.B-4/7/2000-TRU dated 03/04/2000 stipulating that the goods used in the office premises are not eligible for Cenvat credit?
7. Thereafter, the issue was dealt and the Hon’ble High Court and held that the assessee is entitled to avail Cenvat credit on the services received at port by the exporter. In view of these observations, we find that the issue has attained finality, and admittedly no appeal has been preferred by the department therefor
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e, after waiving the pre-deposit, we dispose of the appeal itself as discussed above holding that the appellants are entitled to inputs service credit on CHA service, port service and warehousing service. Therefore, we allow the appeal itself. 8. In view of these discussions, the appeal as well as stay application are disposed of.