2014 (10) TMI 285 - AT - Service Tax

Admissibility of appeal - whether, reversal of credit taken on common input services used in or in relation to taxable service as well as exempted service would suffice or the appellant should be compelled to pay an amount @ 8% of the value of the exempted service as provided for in Rule 6 (3) of the CENVAT Credit Rules, 2004 - Held that - The cap of 20% for availing of credit was lifted w.e.f. 01/04/2008 and the assessees were permitted to avail CENVAT credit without any limit. Therefore, as clarified by the Board, what could have been demanded from the assessee is only interest liability on the excess credit availed and not denial of the entire credit. In these circumstances, there is a question of law involved for consideration of the appeal and, therefore, the appeal deserves to be admitted even though the amount involved is less than ₹ 50,000 - Decided in favour of assessee.

Summary

Issues:
1. Confirmation of demand for availing CENVAT credit in excess of 20% cap.
2. Reversal of credit taken on common input services used in taxable and exempted services.
3. Rejection of appeal at the admission stage based on recurring effect.

Analysis:
1. The judgment deals with an appeal and stay petition against an Order-in-Appeal passed by the Commissioner of Customs & Central Excise. The lower appellate authority confirmed a demand of &8377; 26,487 on the grounds of availing CENVAT credit exceeding the 20% cap for inputs and input services used in taxable and exempted services.

2. The appellant reversed the excess credit availed prior to the notice, complying with the law by reversing &8377; 927 along with interest. The appellant argued that demanding 8% of the value of exempted services would lead to double taxation. The Revenue contended that the issue was a one-off transaction with no recurring effect, thus justifying the rejection of the appeal at the admission stage.

3. The key issue for consideration was whether the reversal of credit taken on common input services used in both taxable and exempted services was sufficient, or if the appellant should pay 8% of the value of exempted services as per Rule 6(3) of the CENVAT Credit Rules, 2004. The judgment clarified that post the lifting of the 20% cap on availing credit from 01/04/2008, the demand from the assessee should only be for interest on the excess credit, not a complete denial of credit. The judgment highlighted a legal question regarding the application of the rule, leading to the admission of the appeal despite the amount being less than &8377; 50,000.

4. In conclusion, the appeal was admitted, and the Registry was directed to list it for final hearing. The judgment emphasized the legal interpretation of the CENVAT Credit Rules, 2004, and the implications of availing credit exceeding the cap, providing clarity on the treatment of excess credit and the applicability of interest liability.