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2018 (11) TMI 179 - AT - Service TaxCENVAT Credit - Scope of SCN - main contention put forward by the ld. counsel for the appellant is that the show cause notice itself cannot sustain for the reason that it invokes Rule 3 of CENVAT Credit Rules, 2004 to disallow the credit whereas the demand is made under Rule 14 of the said Rules disallowing credit attributable to trading as envisaged under Rule 6. Held that - It is correct that show cause notice does not invoke Rule 6 of CCR, 2004. But it is to be noted that the provision for availing credit is envisaged in Rule 3 of CCR, 2004. The show cause notice proposes to deny the credit availed on trading as per Rule 3 of CCR, 2004. Rule 3 does not allow credit to be allowed on trading activity. The show cause notice invokes Rule 3 to disallow the credit for the reason that no credit can be availed on trading as per this provision. Undisputedly, the appellants have availed credit on trading activities. Therefore, the demand raised disallowing the credit on trading is legal and proper. Appeal dismissed - decided against appellant.
Issues Involved:
1. Eligibility of CENVAT credit on common input services used for trading activities. 2. Invocation of Rule 3 vs. Rule 6 of CENVAT Credit Rules, 2004. 3. Applicability of Rule 14 for recovery of wrongly availed credit. 4. Consideration of trading as an exempted service prior to 1.4.2011. 5. Validity of extended period for demand. 6. Imposition of penalty under Rule 15(4) of CENVAT Credit Rules, 2004. Detailed Analysis: 1. Eligibility of CENVAT Credit on Common Input Services Used for Trading Activities: The appellants were engaged in providing both taxable services and trading activities. They availed input tax credit on common input services used for both activities. The department argued that credit on common input services used for trading activities is not eligible as per Rule 3 of CENVAT Credit Rules, 2004. The appellants, however, considered trading as an exempted service and reversed proportionate credit as per Rule 6(3)(ii) of CCR, 2004. 2. Invocation of Rule 3 vs. Rule 6 of CENVAT Credit Rules, 2004: The department invoked Rule 3 to disallow the credit, stating that trading is not a service, hence credit on input services used for trading is not permissible. The appellants argued that the department should have invoked Rule 6, which pertains to exempted services. The Tribunal noted that Rule 3 provides the conditions for availing credit and does not allow credit on trading activities. The Tribunal held that the show cause notice correctly invoked Rule 3 for disallowing credit. 3. Applicability of Rule 14 for Recovery of Wrongly Availed Credit: The appellants contended that Rule 14, which deals with the recovery of wrongly availed credit, cannot be applied without invoking Rule 6. The Tribunal clarified that Rule 14 provides for the recovery of wrongly availed credit and does not specifically mention Rule 3 or Rule 6. The Tribunal upheld the department's action under Rule 14 for recovery of the credit. 4. Consideration of Trading as an Exempted Service Prior to 1.4.2011: The appellants relied on the decision of the Hon'ble High Court of Madras in Ruchika Global Interlinks, which held that trading is to be considered an exempted service even prior to 1.4.2011. The Tribunal acknowledged this decision but distinguished it from the present case, noting that Ruchika Global dealt with the applicability of Rule 6, while the present case involved Rule 3. The Tribunal held that trading cannot be considered an exempted service under Rule 3. 5. Validity of Extended Period for Demand: The appellants argued that the extended period is not invocable as the issue is interpretational and the department had knowledge of their activities. The Tribunal did not specifically address this argument but upheld the demand, indicating that the extended period was validly invoked. 6. Imposition of Penalty under Rule 15(4) of CENVAT Credit Rules, 2004: The appellants argued that the penalty should be set aside as the issue was interpretational. The Tribunal, however, upheld the imposition of penalty under Rule 15(4), as the credit was wrongly availed and utilized. Conclusion: The Tribunal dismissed the appeal, holding that the demand for disallowing the credit on trading activities is legal and proper. The show cause notice correctly invoked Rule 3 of CENVAT Credit Rules, 2004, and the recovery under Rule 14 was upheld. The Tribunal found that the decision in Ruchika Global Interlinks did not assist the appellants, and the imposition of penalty was justified.
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