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2014 (11) TMI 76 - AT - Central ExciseCENVAT Credit - Whether the assessee is entitled to take CENVAT Credit as per Rule 6(5) of Cenvat Credit Rules, 2004 or not - Held that - There is no bar to avail CENVAT credit on the services covered under Rule 6(5) by a unit who is engaged in the activity of manufacturing on both dutiable as well as exempted goods and engaged in dutiable as well as exempted services. Therefore, we hold that in this case the assessee is entitled to take the CENVAT credit of services referred in Rule 6(5) of CENVAT Credit Rules, 2004 for whole of the credit attributable to dutiable as well as final exempted products and for taxable or exempted services but the assessee is not entitled to take CENVAT credit attributable to the activity of trading as during the relevant time, the trading activity was neither excisable nor an exempted service at all. Therefore, the quantification of inadmissible CENVAT credit is required to be done at the end of adjudicating authority to disallow the CENVAT credit attributable to trading activity. Whether the learned Commissioner has jurisdiction to reallocate the CENVAT credit or not - Held that - Commissioner has no jurisdiction to reallocate the CENVAT credit to the assessee in question as there was no such allegation in the show-cause notice and he cannot go beyond the allegation in the show-cause notice to decide the issue. - Matter remanded back - Decided in favour of Revenue.
Issues Involved:
1. Challenge to show-cause notices for the period September 2006 to March 2010 and January 2011 to March 2012. 2. Disallowance of CENVAT Credit under Rule 6(5) of Cenvat Credit Rules, 2004. 3. Jurisdiction of the Commissioner to reallocate CENVAT Credit. 4. Entitlement of the assessee to take CENVAT credit on specified services. 5. Applicability of the extended period of limitation. Analysis of the Judgment: 1. Challenge to Show-Cause Notices: The case involved challenges by Elder Pharmaceuticals Ltd. and the Revenue against two show-cause notices for different periods. The Revenue also filed appeals against orders of the Commissioner (Appeals) and the adjudicating authority. 2. Disallowance of CENVAT Credit: The issue revolved around the disallowance of CENVAT Credit under Rule 6(5) of Cenvat Credit Rules, 2004. The appellant had distributed credit based on turnover but was alleged to have erred in distributing credit on services covered under Rule 6(5). The adjudicating authority disallowed the credit, leading to the appeal. 3. Jurisdiction of the Commissioner: The jurisdiction of the Commissioner to reallocate CENVAT Credit was questioned. It was argued that the Commissioner exceeded jurisdiction by reallocating credit not mentioned in the show-cause notice. The Tribunal held that the Commissioner lacked jurisdiction to reallocate credit beyond the scope of the notice. 4. Entitlement to CENVAT Credit on Specified Services: The Tribunal examined whether the assessee was entitled to take CENVAT credit on services specified under Rule 6(5) of Cenvat Credit Rules, 2004. It was determined that the assessee could avail credit for services related to manufacturing both dutiable and exempted goods but not for trading activities. 5. Applicability of Extended Period of Limitation: The Tribunal concluded that the matter involving the entitlement to CENVAT credit was debatable, making the extended period of limitation inapplicable. Consequently, no penalty was warranted, and the demands pertaining to the extended period were set aside. In summary, the Tribunal ruled in favor of the assessee regarding the entitlement to CENVAT credit on specified services while disallowing credit for trading activities. The jurisdiction of the Commissioner to reallocate credit was limited to the scope of the show-cause notice. The extended period of limitation was deemed inapplicable, leading to the remand of the matter for quantification of demands within the normal period.
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