Cenvat credit cannot be denied on ground that exporter should avail benefit of notification no. 17/2009-ST.

PJ/Case Laws/2012-13/1454

Case:- PLUS PAPER FOODPAC LTD Vs COMMISSIONER OF CENTRAL EXCISE, THANE.

Citation: - 2013-TIOL-297-CESTAT-MUM.

Brief facts:-The Appellant, M/s. Plus Paper Foodpac Ltd., Badlapur, Thane, are manufacturers of paper and paper products. They availed Cenvat Credit of the service tax paid on CHA Services, Shipping Agent Services and Clearing & Forwarding agent services and courier agency services amounting to Rs. 71,126/-. The department issued a notice dated 18/04/2011 wherein they proposed to deny the Cenvat Credit on the ground that the input services were availed in respect of an export transaction and vide notification No.17/2009-ST dated 07/07/2009, these services were exempted and therefore, the appellant should have availed the exemption rather than paying duty and taking Cenvat Credit. The notice was adjudicated vide order dated 24/11/2011 wherein the Cenvat Credit was disallowed on two grounds, namely, the benefit of notification No. 17/2009 should have been availed and also on the ground that these services have no nexus with the manufacturing activity undertaken by the appellant and therefore, they are not eligible for the refund. Accordingly, the demand of Cenvat Credit wrongly taken was confirmed along with interest thereon and an equivalent amount of penalty was imposed on the appellant. The appellant preferred an appeal before the lower appellate authority, who rejected their appeal. Hence, the appellant is before Tribunal.

Appellant’s Contention :-The Ld. Counsel for the appellant submits that there is no condition stipulated in Notification No.17/2009 that it should be availed compulsorily and uniformly by the exporter. There is no bar in the said notification preventing an exporter from availing Cenvat credit on service tax paid thereon and claiming refund later. In fact one of the conditions for availing the exemption is that Cenvat credit on service tax paid on input services should not have been taken under the Cenvat Credit rules, 2004, which implies that the assessee can either avail the exemption under the notification or avail credit under the Cenvat Credit Rules. Further as regards the contention of the department that the impugned services are not being eligible inputs services, he relies on the decision of this Tribunal in their own case vide order No. A/112/12 /SMB/C-IV dated 11/05/2012 wherein the issue was considered and it was held that the impugned services are eligible input services and the appellant are rightly entitled for Cenvat credit of the service tax paid thereon.

Respondent’s contention:-The Ld. AR appearing for the revenue reiterates the findings of the lower authorities.

Reasoning of judgement:- The Tribunal held that Notification No. 17/2009 dated 07/07/2009, exempts the taxable services received by an exporter of goods and used by him for export of goods. This exemption is subject to certain conditions and one of the conditions stipulated is that no Cenvat credit of service tax paid on the specified service used for export of the said goods has been taken under the Cenvat Credit Rules, 2004.This condition clearly implies that in a case where the exporter avails Cenvat credit, he cannot avail the benefit of exemption. There is no bar stipulated in the said notification that he cannot avail Cenvat credit and the availment of Cenvat credit will be entirely governed by the terms and conditions of the Cenvat credit rules. The fact that input or input services, on which duty/tax has been paid, have been received and used in the manufacture of excisable goods which have been exported is not in dispute. In the show cause notice, the only ground taken for denying the credit is that benefit of notification No.17/2009 should have been compulsorily availed by the exporter manufacturer. The said notification being a conditional exemption notification, it is for the manufacturer to decide whether to avail the said exemption or not. Thus there is no merit in the department's contention the appellant should have availed the benefit of notification No.17/2009. Further the services in this case, namely, CHA service, C&F service, Shipping Agent's services and courier service, are not eligible input services, this issue has been already considered and decided by this Tribunal in favour of the appellant in the order cited supra. Therefore set aside the impugned order and allow the appeal with consequential relief, if any. Stay application is also disposed of.

Decision:-Appeal allowed.

Comment:-The analogy drawn from this case is that the notification no. 17/2009 provides conditional exemption from service tax and it is at the option of the assessee to avail the credit or claim benefit of the exemption notification.

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PJ/Case Laws/2012-13/1454

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