Judgment:
Per M.V. Ravindran (Oral)
This stay petition is filed for the waiver of pre-deposit of the following amounts:-
(i)Input Service Tax credit of Rs. 4,70,938/-
(ii)Interest on the above amount u/s 11AB of the CE Act, 1944
(iii)Penalty of Rs. 10,000/-
2. After hearing both sides for some time on the stay petition, I find that the issue involved in this case is in a narrow compass and hence, after allowing the application for the waiver of pre-deposit, I take up the appeal itself for disposal.
3. The facts that arise for consideration are the appellant herein are manufacturers of parts and accessories of Motor Vehicles and are availing cenvat credit of duty paid on the inputs and Capital Goods used in relation to the manufacture of their final products. They are also availing the credit of the service tax paid on the input services, which they are using. In the case before me, the appellant have availed and utilized credit of service tax paid on the input services i.e. transportation services, provided to their staff for pick up and drop from their residence to factory and vice versa. Revenue is of the view that such credit is inadmissible, as this is a welfare measure. Coming to such a conclusion, that the amount of the credit taken being ineligible, it was adjudged that the same has to be demanded, consequent interest and penalties was also imposed and on an appeal, the learned Commissioner (Appeals) has upheld the same.
4. The learned Counsel appearing on behalf of the appellant submits that in the appellant’s own case, the Division Bench of this Tribunal, as reported in 2009 (14) STR 316(Tri.-Bang.), has held that Canteen services, Transportation Charges for transportation of employees and Group Insurance Health Policy are eligible input services and the service tax paid on such services can be availed as a credit.
5. The learned JDR submits that the decision of the co-ordinate Bench in the case of CCE, Nagpur Vs. M/s. Manikgarh Cement Works ‘2009-TIOL-2059-CESTAT-MUM has held other way round. He would submit that the decision of the Supreme Court, in the case of Maruti Suzuki was considered by the bench. It is his submission that the credit that can be availed on the input services has to go through the test as has been laid down by the Hon ble Supreme Court in the case of Maruti Suzuki.
6. In counter, the learned Counsel submits that the co-ordinate bench of Mumbai, in the case of Semco Electrical Pvt. Ltd. Vs. CCE, Pune - 2010 (18) STR 177(Tri.-Mumbai) has taken a contrary view, as against the view taken by the bench in the Manikgarh Cement Works . He would also submit that the in the case of M/s. ISMT Ltd. Vs. CCEandC, Aurangabad - 2010-TIOL-27-CESTAT-MUM, the Mumbai Bench has taken a view following the decision of Semco Electrical Pvt. Ltd. (supra). He would submit that the Maruti Suzuki [2009-TIOL-94-SC-CX] decision of the Apex Court may not be applicable in the case of ‘input services’ as it was in the case of ‘inputs’ only.
7. I have given anxious consideration to the submissions made by both sides and perused the records. I find that the denial of cenvat credit on the service tax paid on the transportation services provided to the staff for pick up and drop from their residence to the factory and vice versa was an issue before the DB in the assessee’s own case wherein the DB has held that such amount is eligible to be taken as credit. Since the decision of the DB in the appellant’s own case is binding on me, I hold that the impugned Order-in-Appeal, which relies on the case of the various other decisions of the Tribunal, is not sustainable and is liable to be set aside. The impugned order is set aside and appeal allowed with consequential relief. The stay petition and appeal is disposed of as indicated herein above.