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2024-TIOL-703-CESTAT-MUM
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL
REGIONAL BENCH, MUMBAI
Service Tax Appeal No. 87091 of 2016
[Arising out of Order-in-Original No. 15/ST-V/SKD/2016-17 dated 31.05.2016
passed by the Commissioner of Service Tax-V, Mumbai]
Date of Hearing: 01.05.2024
Date of Decision: 25.06.2024
M/s HDFC ERGO GENERAL INSURANCE COMPANY LTD
6TH FLOOR, LEELA BUSINESS PARK,
ANDHERI-KURLA ROAD, ANDHERI EAST,
MUMBAI - 400059
Vs
COMMISSIONER OF SERVICE TAX-V,
MUMBAI 3RD FLOOR, UTPAD SHULK BUILDING,
BANDRA-KURLA COMPLEX, BANDRA, MUMBAI - 400 051
Appellant Rep by: Shri Thirumalai Sompath, Adv.
Respondent Rep by: Shri Pramod Kumar Maurya, AC (AR)
CORAM: Suvendu Kumar Pati, Member (J)
Anil G Shakkarwar, Member (T)
ST - Issue relates to denial of CENVAT Credit taken by appellant against duty paid on re-insuring motor vehicle while providing General Insurance Service for period from April, 2011 to March, 2012 and direction for its recovery alongwith interest under Section 75 and equal penalty under Section 78 of Finance Act, 1994 - The Commissioner has reproduced relevant provision that was existing before 01.07.2012 in his O-I-O but wrongly mentioned the same was effective after 01.04.2012 whereas in actuality, it was in effect since 01.04.2011 - From the bare reading of Sub-Clause (BA) of Rule 2(l) of CCR, 2004, it can be said that Sub-Clause (BA) would apply to appellant’s case and presence of two negatives namely ‘but excludes’ in Clause 1 and ‘except when used by’ in Sub-Clause (BA) would bring a positive meaning to the fact that the said input service is available to provider of output service who are specified in Sub-Clause (D) of Clause 105 of Section 65 of the Finance Act, 1994 who is by definition the insurer carrying on general insurance business in relation to General Insurance and providing service to a policy holder or to any other person - By definition itself General Insurance Company has been exclusively granted the right to use CENVAT Credit in relation to motor vehicles insured by them or reinsured by them but the Commissioner had committed a blunder in reproducing the section wrongly in his order and replacing "provider of output service" with "provider of input service" to reach at his findings that credit are not admissible - Therefore, appellant is entitled to avail...