2017 (1) TMI 877 - AT - Service Tax

Reversal of CENVAT credit - Rule 6(3)(c) of Cenvat Credit Rules, 2004 - the appellant was providing taxable as well as exempted service to their customers but not maintained the separate records for exempted service - Held that - The learned Counsel states that sub-rule 6(3) (c) relates to only input duty credit and restriction placed therein is not applicable to the capital goods credit and credit in respect of specified services, which are covered under sub-rule 6(4) and Rule 6(5) respectively - the Ministry of Finance (Board s) Circular No. 137/203/07-CX-4 dated 01.10.2007, is relied upon, which was not dealt by the adjudicating Commissioner. The Commissioner has not dealt with a circular whether the circular is applicable in the instant case or not, we deem fit to set aside the impugned order and remand the matter back to the Commissioner (Appeals) - appeal allowed by way of remand.

Summary

Issues:
1. Utilization of Cenvat credit on input services and capital goods without maintaining separate records for exempted services.
2. Alleged excess utilization of Cenvat credit by the appellant.
3. Interpretation of Rule 6(3)(c) of Cenvat Credit Rules, 2004 regarding the utilization of credit for taxable and exempted services.
4. Applicability of Ministry of Finance Circular and previous tribunal decisions in determining the utilization of credit.

Analysis:
The appellant, engaged in providing taxable and exempted services, availed Cenvat credit on input services and capital goods without maintaining separate records for exempted services. The Department alleged excess utilization of Cenvat credit amounting to ?27,89,221.00 during a specific period. The Department demanded ?63,13,392/- as Cenvat credit, citing Rule 6(3)(c) of the Cenvat Credit Rules, 2004, which limits credit utilization to 20% of the service tax payable on taxable output service. The appellant contended that the restriction under sub-rule 6(3)(c) does not apply to capital goods credit and credit for specified services covered under sub-rule 6(4) and Rule 6(5) respectively. The appellant relied on a Ministry of Finance Circular and a previous tribunal decision to support their argument.

During the hearing, the appellant's counsel argued that the adjudicating Commissioner did not properly consider the applicability of the circular in the case. The Tribunal, noting the lack of consideration of the circular by the Commissioner, set aside the impugned order and remanded the matter back for a fresh decision. The Tribunal directed the Commissioner to examine whether the circular is applicable in the case and provide an opportunity for the appellant to present additional evidence. The appeal was allowed by way of remand, emphasizing the need for a thorough examination of the circular's relevance to the case.

In conclusion, the judgment focused on the proper interpretation of Rule 6(3)(c) regarding Cenvat credit utilization for taxable and exempted services. The Tribunal highlighted the importance of considering relevant circulars and previous decisions in making determinations related to credit utilization. The decision to remand the case for further examination underscored the significance of ensuring a fair and comprehensive review of all relevant factors in such matters.