Page 112 - GSTL_18th June 2020_Vol 37_Part 3

326 GST LAW TIMES [ Vol. 37
4. In response to such submissions, Learned Authorised Representative
for respondent department Mr. Saikrishna Hatangadi submitted that activities
undertaken in rented premises were beyond the place of removal of final prod-
ucts and being a company registered as ISD, appellant had availed of the credits
in its factory at Plot No. 20, Satpur, Nasik alone for which credit was rightly de-
nied by the Commissioner (Appeals). He further submitted that Managing Direc-
tor of appellant company had accepted the lapse and promised to pay back ir-
regular Cenvat Credit of Rs. 14,55,273/- as well as paid the same vide challan
dated 23-10-2010 and acknowledged such mistake in writing in his letter dated
22-10-2012. Further in citing Hon’ble Supreme Court’s decision reported in 2004
(165) E.L.T. 136 (S.C.), he argued that facts of non-admissibility of credit were
admitted by the appellant which needs no further proof for which interference
for the Tribunal in the order passed by the Commissioner (Appeals) is uncalled
for.
5. Heard from both the sides at length and perused case record. It is ob-
served that the Commissioner (Appeals) had rejected appellants appeal on the
ground that sale of goods that had taken place from the immovable property
taken on rent was situated away from the place of removal. Further appellant
had acknowledged to have registered as an ISD. Therefore, availing total credit
on renting services in the factory was not convincing as the rented premises were
used for marketing and sale of goods manufactured in both the units of appel-
lant’s factory. He further noted that appellant had not disclosed about availment
of such Cenvat Credit on renting services in its ER-1 Returns and ultimately he
endorsed the findings of the adjudicating authority in confirming the demand,
interest and penalty. However, going by the decision of this Tribunal in the case
of I.P. Ring Ltd. reported in 2017-TIOL, cited supra, such renting of immovable
property services taken to be used as branch office for procurement of orders,
delivery of goods, repair and maintenance service as well as for marketing pur-
pose are admissible credits for both pre- and post-amendment period covering
the entire disputed period in the appeal. Moreover, appellant had replied to the
query of the respondent department concerning its registration as ISD in which
case, as an input service distributor, it had the discretion to distribute the inputs
but the Commissioner (Appeals) had not believed its reply by observing that ap-
pellant was using the rented premises for sale of goods and marketing of prod-
ucts being manufactured in two units of Appellant and such issue of ISD regis-
tration was not agitated in the show cause notice. What is more important is that
the Commissioner had accepted the Appellant’s contention that appellant was
using the rented premises for “marketing” purposes which is in conformity to
Rule 2(l) of Cenvat Credit Rules that clearly covers “advertisement or sales pro-
motion” within the definition of input services. Therefore, appellant is eligible to
avail the credits and its specific non-reflection in ER-1, could be due to non-
availability of such specific narration in the format meant for filing of ER-1 re-
turns itself. The submissions of Ld. Authorised Representative regarding admis-
sion of appellant that credit is inadmissible cannot be taken in the spirit of Sec-
tion 56 of the Indian Evidence Act since it had erroneously presumed that the
rule required it to make such payment and the same cannot be considered as
facts admitted. Hence the order.
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