Suvendu Kumar Pati ORDER
C.J. Mathew, Member (T)
1. This is an appeal against order-in-original no. 82/2010/C dated 29th December 2010 of Commissioner of Central Excise, Nagpur denying CENVAT credit of ` 94,16,769/-, having been availed on taxes paid for procurement of 'courier service' between April 2005 and September 2009 and of ` 3,93,971/- on utilising services of 'job workers' for the same period. The denial of CENVAT credit on the former was consequent on the finding that the definition of 'input service' in rule 2(l) of CENVAT Credit Rules, 2004 specifies various activities that are directly or indirectly connected with the manufacture of goods or rendering of services which does not extend to any activity beyond the place of removal.
2. It is the contention of Learned Counsel for appellant that as manufacturers of denim fabric of various specifications, 'courier service' is utilised for despatch of samples to potential customers and that it is the resulting orders that are manufactured. Laying particular emphasis on customised production, Learned Counsel submits that such service is inextricably connected with business and well within the inclusive component of the definition referred supra during the relevant period. It is his further submission that the appellate authority had dropped the notices pertaining to subsequent periods and that sustaining of denial for the period in dispute would be patently inconsistent. On the eligibility of taxes discharged on procuring service of job workers as CENVAT credit, it is his contention that the relayering of the rolling machine deployed at the factory arising from wear and tear was entrusted to another entity who had charged them tax as provider of 'business auxiliary service.' According to Learned Counsel for appellant, the bar on availment of credit of taxes which are subject to conditional exemption does not extend to notification no. 8/2005-ST which is one such and that, in any case, section 93 of Finance Act, 1994, being substantially different from section 5A of Central Excise Act, 1944, cannot be placed at par for such treatment. It is also contended that the denial of CENVAT credit amounts to reopening of assessment at the time of availment which is contrary to settled law for which reliance is placed on the decision of the Hon'ble High Court of Karnataka in Commissioner of Central Excise, Bangalore II v. Federal Mogul TPR India Ltd. [MANU/KA/1412/2015 : 2016 (42) STR 427 (Kar.)]. It is also his contention that the show cause notice dated 29th April 2010 was without jurisdiction as the bar of limitation is an impediment to recovery of taxes for the extended period as the appellant was subject to audit every year.
3. Learned Authorised Representative placed reliance on the definition of 'courier' in section 65(33) of Finance Act, 1994 to demonstrate its substantive connection with transport. It was submitted that, as the samples are removed, on payment of duty by appellant, the place of removal is the factory and not the premises of the consignee; consequently in this dispute which straddles the pre-amended and post amended versions of rule 2(l) of CENVAT Credit Rules, 2004 the expenditure incurred after removal of the goods excludes the claim for availment of CENVAT credit. He also contends the various case laws relied upon by the appellant predate the decision of the Hon'ble Supreme Court in Commissioner of Central Excise & Service Tax v. Ultra Tech Cement Ltd. [