2018 (8) TMI 903 - AT - Service Tax

CENVAT Credit - manufacture of taxable as well as exempt goods - non maintenance of separate records - whether the appellant was required to pay 6% of amount of value of exempted goods cleared by them as they did not maintain separate record for input services? - Held that - Admittedly the Appellant have not maintained the separate accounts. But Rule 6(3) of Cenvat Credit Rules, 2004 permits the manufacturer or provider of output services, who opted not to maintain separate records, to choose any one of the options provided under the said sub-rule. In this case prima facie it appears that the appellant has opted for option given under Rule 6(3)(ii) of the Cenvat Credit Rules, 2004 and had given the intimation to the department vide communication dated 2.4.2012 and the said letter, which has been produced by the appellant before the adjudicating authority. The preliminary issue raised by the Appellant is very relevant and has a bearing on the matter since the entire case of the department is revolving around not communicating the option by the Appellant to the department as per Rule 6 of Cenvat Credit Rules, 2004 and therefore in the peculiar facts of this case, I allow the Appeal filed by the Appellant by way of remand to the First Appellate Authority with direction to decide the issue, without being influenced by any observation made in this order - appeal allowed by way of remand.

Summary

Issues involved:
1. Whether the appellant was required to pay 6% of the value of exempted goods due to not maintaining separate records for input services.

Analysis:
The appellant filed an appeal against the order passed by the Commissioner of CGST & Central Excise- Jaipur-I (Appeal). The main issue was whether the appellant needed to pay 6% of the value of exempted goods cleared by them because they did not maintain separate records for input services. The appellant claimed to have communicated the option under Rule 6(3)(ii) of the Cenvat Credit Rules to the department on 2.4.2012, but the department did not consider it. The department issued a show cause notice alleging non-payment of service tax amounting to ?2,13,800 during April 2012 to September 2013. The appellant provided services in a state exempted from service tax but did not reverse the Cenvat Credit as required by the rules. The appellant argued that they had indeed communicated the option to the department, but the department disputed the authenticity of the communication.

The appellant did not maintain separate accounts, but Rule 6(3) of Cenvat Credit Rules, 2004 allowed for options for those not maintaining separate records. It appeared that the appellant had opted for the option under Rule 6(3)(ii) and had communicated this to the department on 2.4.2012. The communication produced by the appellant had the department's stamp as acknowledgment. However, the adjudicating authority did not rely on this communication, claiming it was not available in their records and even accused the appellant of submitting a forged letter during the hearing. The appellant challenged this finding before the Commissioner (Appeals), but there was no specific ruling on this issue in the impugned order.

The appellate tribunal found the preliminary issue raised by the appellant to be crucial, as the entire case hinged on whether the appellant had communicated the option to the department as required by the rules. The tribunal allowed the appeal by remanding the case back to the First Appellate Authority to determine if the appellant had indeed communicated the option to the department as claimed. Both parties were given the opportunity to present evidence, emphasizing the importance of a fair hearing in reaching a decision. The appeal was allowed by way of remand, highlighting the significance of proper communication and adherence to the rules in such cases.