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2018 (3) TMI 410 - AT - Central ExciseCENVAT credit - trading activity undertaken by the appellant - demand of 6% of trading activity - Held that - learned Commissioner (Appeals) failed to understand that there is no trading services, there is only trading activity as per the provisions of Finance Act also, the activity of trading is termed as an exempted service but there is no trading service - appellant has taken cenvat credit and not claimed the refund thereof. Therefore, it would be only a revenue neutral situation, the appellant is not required to pay 6% of the value of trading activity. Extended period of limitation - Held that - the goods have been exported by the appellant under ARE 1 document and the same was in the knowledge of department - extended period not invocable. Appeal allowed - decided in favor of appellant.
Issues:
1. Entitlement to cenvat credit for trading activity. 2. Requirement to pay 6% of trading activity value. 3. Invocation of extended period of limitation. 4. Export of goods and trading services. 5. Revenue neutrality and refund of cenvat credit. 6. Sustainability of the impugned order. Entitlement to Cenvat Credit for Trading Activity: The appellant, engaged in manufacturing and trading activities, appealed against the order denying cenvat credit for input services related to trading. The Revenue contended that without separate accounts, cenvat credit cannot be availed. The appellant argued that being an exporter, they should be allowed the credit, and even if reversal was required, they could claim a refund as it was used for exports. The Tribunal noted that the appellant had not exported the trading service but only engaged in trading activity, which is an exempted service under the Finance Act. The Commissioner's finding on trading services was deemed erroneous, and as the appellant had paid service tax for export-related services, they were eligible for a refund, resulting in a revenue-neutral situation. Requirement to Pay 6% of Trading Activity Value: The impugned order demanded payment equal to 6% of the value of trading activity due to the appellant's failure to maintain separate accounts for trading services. However, the Tribunal found that since the appellant had exported goods under proper documentation known to the Revenue, the extended period of limitation could not be invoked. Consequently, the requirement to pay 6% of the trading activity value was deemed unsustainable, and the appeal was allowed with consequential relief. Invocation of Extended Period of Limitation: The Tribunal observed that since the goods were exported under proper documentation and known to the department, the extended period of limitation could not be invoked. This finding supported the appellant's argument against the imposition of the demand related to the trading activity. Export of Goods and Trading Services: The Tribunal clarified that the appellant had exported goods under proper documentation, which was acknowledged by the Revenue. The distinction between trading services and trading activity was highlighted, with the former being non-existent as per the Finance Act. The Tribunal's analysis emphasized the importance of understanding the nature of the appellant's activities in relation to export and trading. Revenue Neutrality and Refund of Cenvat Credit: The Tribunal emphasized that the appellant, having paid service tax for export-related services and taken cenvat credit without claiming a refund, was in a revenue-neutral situation. This circumstance, coupled with the erroneous findings of the Commissioner, led to the conclusion that the appellant was not liable to pay 6% of the trading activity value, as the demand was not sustainable. Sustainability of the Impugned Order: Ultimately, the Tribunal held that the impugned order was not legally sustainable due to errors in understanding the appellant's activities, the nature of trading services, and the applicability of cenvat credit in the context of exports. Therefore, the order was set aside, and the appeal was allowed with consequential relief.
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