2017 (12) TMI 384 - AT - Central Excise

CENVAT credit - input services - renting of immovable property - telephone service - case of Revenue is that Renting of immovable property service and telephone services can be exclusively identified as used wholly by one unit. In these circumstances, it may attract the mischief of Rule 7 (c) of the CCR - Held that - It is an admitted fact that the respondents apart from conducting manufacturing and provisions of services are also engaged in trading activity. Thus the credit of entire duty would not be available to them in respect of the premises which are exclusively engaged in trading activity. Thus if a premises is only used for trading activities then the distribution of credit exclusively attributable to such unit will result in revenue loss to the Government. Thus, apparently there is no revenue neutrality in the instant case. In the instant case Rule 7 (c) of the Cenvat Credit Rules, 2004 is attracted in respect of renting immovable property and telephone services - also, no evidence of Revenue neutrality has been produced. Since the appellants are, inter alia engaged in the trading activity also, there is no revenue neutrality as part of the credit attributable to the trading activity is not available to the appellants. Appeal dismissed - decided against Revenue.

Summary

Issues:
1. Distribution of Cenvat Credit for services used at various branches/depots and business units.
2. Interpretation of Rule 7 of the Cenvat Credit Rules regarding distribution of credit by input service distributor.
3. Determination of revenue neutrality in the context of credit distribution.

Analysis:

Issue 1: Distribution of Cenvat Credit
The Revenue filed appeals against the Commissioner (Appeals) dropping the demand for reversal of Cenvat Credit, interest, and penalties. The argument centered around the distribution of credit for services exclusively used at different business units. The Revenue contended that Rule 7 (c) of the Cenvat Credit Rules mandates that credit of services used wholly in a unit should only be distributed to that unit. The Tribunal referenced the decision in Kitply Industries Ltd. to emphasize the necessity of fulfilling specific criteria for revenue neutrality.

Issue 2: Interpretation of Rule 7 of Cenvat Credit Rules
The respondent, supported by the impugned order, asserted that the credit distribution was in compliance with Rule 7 (d) of the Cenvat Credit Rules. They argued that services like renting of premises and telephone were commonly used for overall business operations across various units, justifying the credit distribution. However, the Tribunal noted that certain services, such as renting of immovable property and telephone services, could be exclusively identified as used wholly by one unit, potentially violating Rule 7 (c) of the Cenvat Credit Rules.

Issue 3: Determination of Revenue Neutrality
The Tribunal scrutinized the Commissioner (Appeals) decision and found that the order lacked reasoning on why Rule 7 (c) was not deemed applicable. The Tribunal highlighted the importance of establishing revenue neutrality in each case, emphasizing that mere admissibility of credit does not guarantee neutrality. Reference was made to the four categories outlined in the Jay Yushin Ltd. case to determine revenue neutrality. It was observed that as the appellants were engaged in trading activities, the distribution of credit exclusively attributable to trading units would result in revenue loss, indicating a lack of revenue neutrality.

In conclusion, the Tribunal allowed the revenue appeals, emphasizing the applicability of Rule 7 (c) to the case and the absence of evidence supporting revenue neutrality. The cross objections were disposed of accordingly.