2013 (7) TMI 346 - AT - Service Tax

Cenvat Credit - Rule 6(7) - input services - separate accounts - manufacture of exempted goods and for providing output services provisions relating to dispute between 2004 to 2008 - Held that - appellant had in fact filed their application with the Commissioner of Service Tax within the prescribed period of 6 months - had it been transmitted at once to the CCE, it would probably have been received at his end also within the said period - a person seeking the benefit of the above sub-rule (which has retrospective effect from 10/09/2004) should make an application to the Commissioner of Central Excise within a period of 6 months - the purpose of the beneficial provisions of Rule 6(7) ibid should not be defeated on the hypertechnical ground that the party s application, though received by the department within the prescribed period, reached the Commissioner of Central Excise a day or two after such period case remanded back to the Commissioner for adjudication application decided in the favour of the assessee.

Summary

Issues involved:
1. Appellant seeking waiver and stay in respect of adjudged dues.
2. Allegations of contravention of Rule 6(3) of CENVAT Credit Rules, 2004.
3. Demand for payment under Rule 14 of CCR read with proviso to Section 73(1) of the Finance Act, 1994.
4. Invocation of extended period of limitation.
5. Claiming benefit of sub-rule 7 of Rule 6 of CCR, 2004 with retrospective effect.
6. Dispute regarding the date of filing the application.
7. Challenge to the impugned order based on incorrect facts.
8. Consideration of the benefit of sub-rule (7) of Rule 6 of CCR, 2004.
9. Setting aside the impugned order and remanding the case for de novo adjudication.

Detailed Analysis:
1. The appellant filed an application seeking waiver and stay in respect of the adjudged dues. The tribunal decided that the appeal itself needed to be finally disposed of at that stage. The Department alleged that the appellant contravened Rule 6(3) of CENVAT Credit Rules, 2004 by not maintaining separate accounts for input services used in manufacturing exempted goods and providing taxable output services. The show-cause notice demanded a significant amount from the appellant for the period from 2006-07 to 2009-10 under Rule 14 of CCR. The appellant claimed the benefit of sub-rule 7 of Rule 6 of CCR, 2004 with retrospective effect, citing compliance with the conditions. The impugned order was passed by the Commissioner of Service Tax in adjudication of the dispute.

2. The dispute centered around the date of filing the application by the appellant. The Commissioner's order highlighted the requirement to file the application within 6 months from the date the Finance Bill, 2010 received the President's assent. The appellant contested the finding that the application was filed on 09/11/2010 instead of 04/11/2010. The tribunal directed the respondent to produce original records to confirm the date of filing, which was later verified to be on 04/11/2010. The appellant's compliance with the prescribed period for filing the application was crucial in claiming the benefit of the relevant sub-rule.

3. The tribunal analyzed the provisions of sub-rule 7 of Rule 6 of CCR, 2004 and emphasized that the appellant had fulfilled the condition for claiming the benefit despite the challenge to the filing date of the application. As the benefit was denied solely based on a perceived delay in filing the application, the impugned order was set aside. The case was remanded to the Commissioner for de novo adjudication, instructing to consider the appellant's claim for the benefit of the sub-rule and issue a comprehensive order after giving the party a reasonable opportunity to be heard. The stay application was also disposed of as part of the decision.