ELECON ENGINEERING CO. LTD. Vs. CCE

JUDGEMENT

(1.) THIS appeal is directed against Order -in -Appeal No. Commr.(A)/3/VDR -I/2008, dt. 28.01.2008.

(2.) THE relevant facts that arise for consideration, after filtering out unnecessary details, are that the appellant herein was availing the benefit of CENVAT Credit Rules, 2004 and were discharging duty liability on the finished goods manufactured by them. The appellant sold the finished excisable goods to commission agent and the said commission agent discharged Service Tax liability under the category of Business Auxiliary Service for the period 09.07.2004 to 09.09.2004. The appellant took the CENVAT Credit of such Service Tax on 31.03.2005 which was objected to as being not in consonance with the Rule 3(1) of CENVAT Credit Rules, 2004. The adjudicating authority as well as the first appellate authority did not agree with the contentions raised by the appellant and confirmed the demand. Ld. Counsel, after taking me through the facts of the case and the show cause notices, submitted that the invoices which were issued by the commission agent were in respect of the services rendered by them prior to 10.09.2004, the invoices were raised only in January 2005 and March 2005. It is the submission that since they have paid the Service Tax liability to the commission agent, they were entitled to avail CENVAT Credit. It is his submission that taxability of the services and availment of CENVAT Credit thereon, are two different situations and the provisions of Rule 11 of CENVAT Credit Rules, 2004 would be directly applicable in this case. He would rely upon the following case laws: -

(3.) LD . D.R., on the other hand, would submit that the CENVAT Credit availed is in respect of the services rendered prior to the amendment to Rule 3(1) of CENVAT Credit Rules, 2004. It is his submission that the goods were exported prior to 10.09.2004 and hence the commission paid to foreign agent is indicated on all the documents which were filed for export of the goods. It is his submission that the provisions would directly apply in the case in hand as the said provisions specifically reads as the CENVAT Credit Rules, 2004 are applicable only in respect of the duties paid on or after 10.09.2004 and invoices raised on or after 10.09.2004.