Page 221 - GSTL_2nd April 2020_Vol 35_Part 1

2020 ] INOX WIND LTD. v. COMMISSIONER OF SERVICE TAX, NOIDA 123
Therefore, we hold that the respondent is entitled to avail credit in respect of SEZ
unit.
(b) Whether the respondent is entitled to avail Cenvat credit on medical insur-
ance services or not?
8. With regard to the credit taken in respect of medical insurance ser-
vice, we find that the Commissioner (Appeals) has relied upon the decision of
the Hon’ble Karnataka High Court in the case of Stanzen Toyotetsu India (P) Ltd. -
2011 (23) S.T.R. 444 (Kar.) wherein it was held that Section 38 of the Employees
State Insurance Act, 1948, mandates that subject to the provisions of the Act, all
the employees in factories or establishments to which this Act applies shall be
insured in the manner provided by this Act. On that condition, the credit on
group insurance was allowed by Hon’ble High Court. The Commissioner (Ap-
peals) has further relied upon in the case of Hindustan Coca Cola Beverages P. Ltd. -
2010 (19) S.T.R. 93 (Tri.-Bang.). Admittedly, in that case also the assessee is man-
ufacturer of excisable of goods and not provider of service. In the case of KPMG
(supra), this Tribunal has not examined the issue and has relied upon the deci-
sion of this Tribunal in the case of Stanzen Toyotetsu India Pvt. Ltd. (supra), there-
fore, as the said decision is not speaking one. We are having different views on
the issue. In our considered opinion, the respondent has failed to produce man-
date of the Employees State Insurance Act, 1948, in that circumstance, we are not
in agreement of the decision of this Tribunal in the case of KPMG (supra). There-
fore, we refer the matter to the Larger Bench of this Tribunal to decide the fol-
lowing issue :-
“Whether in the case of service provider, the service provider is entitled
to avail credit on group insurance service in terms of Rule 2(l) of Cenvat
Credit Rules, 2004 or not?”
9. The Registry is directed to place the matter before the Hon’ble Presi-
dent to constitute Larger Bench of this Tribunal to resolve the above issue.
(Pronounced in the Court on 6-2-2019)

_______

2020 (35) G.S.T.L. 123 (Tri. - All.)
IN THE CESTAT, REGIONAL BENCH, ALLAHABAD
[COURT NO. I]
Ms. Archana Wadhwa, Member (J) and Shri Anil G. Shakkarwar,
Member (T)
INOX WIND LTD.
Versus
COMMISSIONER OF SERVICE TAX, NOIDA

Final Order Nos. ST/A/71501/2019-CU[DB], dated 1-8-2019 in Appeal
No. ST/70371/2017-DB
Cess - Exemption under Notification No. 18/2002-S.T., dated 16-12-
2002, as amended vide Notification No. 46/2011-S.T., dated 19-9-2011, Eligibil-
GST LAW TIMES  2nd April 2020  285