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2018 (11) TMI 831 - AT - Service TaxCENVAT Credit - common input services for trading goods - case of appellant is that the trading of goods has come into the exempted category only since 31.03.2011 and therefore the explanation adding trading in the exempted service category cannot be made retrospectively applicable - also appellant has reversed back the amount of common input service credit availed by them. Held that - For the period upto 01.04.2011, 100% CENVAT credit is available for certain services as per Rule 6(5) of the CENVAT Credit Rules, 2004. Trading was not included in Exempted Service upto 31-03-2011 and prior to that the same was not considered as exempted services for the purpose of Rule 6(3) of the CENVAT Credit Rules, 2004. Therefore, there was no need to demarcate between taxable as well as exempted services for the purpose of availment of CENVAT Credit. The Appellant have already reversed ₹ 4,93,236/- as portion of Common CENVAT Credit attributable to both taxable as well as for trading activity in view of provision of Rule 6 of the CENVAT Credit Rules, 2004. The credit of the service tax paid on the services as enumerated under Rule 6(5) of the Cenvat Credit Rules, 2004 are to be allowed - Rule 6(5) starts of non-obstante clause notwithstanding , which would indicate that the provisions of Rule 6(3) are not applicable for the provisions of Rule 6(5) of Cenvat Credit Rules, 2004. Extended period of limitation - penalty - Held that - The credit amount which has been reversed by the appellants has neither been accepted or examined by the department and the amount has been upheld without any verification. The demand for the extended period of limitation is set aside - penalty also set aside - for the limited purpose of verification and re-quantification of demand for the normal period, the matter is remanded to the Adjudicating Authority. Appeal allowed in part by way of remand.
Issues:
1. Availment of CENVAT credit for trading activities. 2. Applicability of Rule 6(5) of the CENVAT Credit Rules, 2004. 3. Reversal of CENVAT credit by the appellant. 4. Interpretation of exempted services and trading of goods. 5. Retrospective effect of tax laws. 6. Verification and re-quantification of demand. 7. Penalty under Section 78 of the Finance Act, 1994. Analysis: 1. The appellant availed CENVAT credit for trading activities, leading to a demand by the Department. The appellant contended that trading of goods was exempted only after 31.03.2011, and they had reversed the credit amount. The Tribunal found that the appellant had indeed availed the credit but argued against retrospective application of the exemption. The appellant's reversal of the credit was noted. 2. The Tribunal examined Rule 6(5) of the CENVAT Credit Rules, 2004, which allows 100% credit for certain services. It was observed that trading was not initially considered an exempted service. The Tribunal referred to the rule's provisions regarding the exclusive use of input services for exempted services. 3. The appellant reversed a portion of common CENVAT credit attributable to both taxable and trading activities, as per Rule 6 of the CENVAT Credit Rules, 2004. The amount was deposited with interest. The details of CENVAT credit availed during FY 2013-14 were presented, including disallowed amounts and credits for various services. 4. The interpretation of exempted services and trading of goods was crucial. The appellant argued that trading was not considered exempted before 01.04.2011. The Tribunal referred to relevant definitions and legal precedents to support the appellant's contentions. 5. Regarding the retrospective effect of tax laws, the Tribunal cited a Supreme Court decision to argue against retrospective application of new tax concepts. The demand for the period before 01.04.2011 was recommended to be set aside based on the appellant's eligibility for CENVAT credit. 6. The Tribunal directed verification and re-quantification of the demand for the normal period, remanding the matter to the Adjudicating Authority. The demand for the extended period was set aside, emphasizing the need for proper examination and verification. 7. The penalty imposed under Section 78 of the Finance Act, 1994, was set aside for the purpose of verification and re-quantification of the demand. The appeals filed by the appellants were partly allowed, with specific instructions for further proceedings and re-evaluation of the demand.
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