2015 (4) TMI 809 - AT - Central Excise

Waiver of pre deposit - Denial of CENVAT Credit - Non Maintenance of separate accounts - Penalty u/s 78 - Held that - The appellant had used certain common input services in or in relation to providing of taxable and exempted service. Since they had not maintained separate accounts and inventory of the input services meant for taxable and exempted service, the department invoking Rule 6(3)(i) has demanded an amount equal to 8%/6% of the value of the exempted services i.e. 8%/6% of the rent received from letting out of the immovable property for residential purposes. However, during the period of dispute, in this case, Rule 6(3) had been amended w.e.f. 1.3.2008 to provide an additional option to a manufacturer / output service provider to reverse the credit attributable to the inputs/input services used in or in relation to the manufacture of exempted final products /provisions of exempted services. In this case, there is no dispute that the appellant have already revered the cenvat credit of ₹ 74,177/- along with interest of ₹ 18,730/- attributable to the input services used in or in relation to providing the exempted service. - In view of this, the impugned order confirming the demand of ₹ 78,57,162/- from the appellants under Rule 6(3) (i) of the Cenvat Credit Rules, 2004 along with interest and imposing penalty of equal amount is prima facie incorrect, more so, in view of the judgment of the Karnataka High Court in the case of CCE, Mangalore Vs. Kudremukh Iron & Steel Co. Ltd. (2011 (4) TMI 950 - KARNATAKA HIGH COURT ) - Stay granted.

Summary

Issues:
1. Applicability of Rule 6(3)(i) of the Cenvat Credit Rules, 2004 on the appellant.
2. Interpretation of the retrospective amendment to Rule 6(3) of the Cenvat Credit Rules, 2004.
3. Justifiability of the demand raised by the department under Rule 6(3)(i).
4. Consideration of the judgment of the Karnataka High Court in a similar case.
5. Decision on the stay application filed by the appellant.

The judgment revolves around the applicability of Rule 6(3)(i) of the Cenvat Credit Rules, 2004 on the appellant, a club providing various taxable services and renting out residential premises during the period of dispute. The department sought recovery of an amount equivalent to a percentage of the rental income under Rule 6(3)(i) due to the appellant not maintaining separate accounts for taxable and exempted services. The appellant contended that they had already reversed the cenvat credit attributable to exempted services, citing a retrospective amendment to Rule 6(3) effective from 1.3.2008. The appellant relied on a judgment of the Karnataka High Court in a similar matter to support their case.

The Tribunal noted that the appellant had indeed reversed the cenvat credit related to exempted services before the issuance of the show cause notice. Considering the retrospective amendment to Rule 6(3) from 1.3.2008, the Tribunal found the demand made by the department under Rule 6(3)(i) incorrect. The Tribunal also highlighted the relevance of the Karnataka High Court judgment, which supported the appellant's position. Therefore, the Tribunal concluded that the appellant had a strong prima facie case in their favor.

In light of the above analysis, the Tribunal granted the appellant's stay application, waiving the requirement of pre-deposit of the demanded amount under Rule 6(3)(i) and related interest and penalty. Additionally, the Tribunal directed the Registry to transfer the appeal to the Service Tax branch due to the nature of the matter concerning an output service provider rather than a manufacturer. The Tribunal allowed the stay application, acknowledging the appellant's strong case and the incorrectness of the demand made under Rule 6(3)(i) based on the retrospective amendment and legal precedents cited.

This comprehensive analysis covers the key issues addressed in the judgment, providing a detailed overview of the Tribunal's decision and the legal reasoning behind it.