2018 (11) TMI 841 - AT - Service Tax

CENVAT Credit - common input services against trading of goods on high sea without bifurcation of inputs on common input services for dutiable and exempted goods - Rule 6(3)(i) of CCR - Held that - It is apparently clear that a pure sale, unassociated with delivery of goods and services together, is not to be considered as service. Therefore what is contained in Section 66D of the Finance Act, 1994 dealing with negative list of services concerning trading of goods and the clarificatory circular referred above as well as inclusion of the same in the explanation appended to clause 2(e) of the Cenvat Credit Rules 2004 are mere clarificatory in nature since definition of service as contained in 65B(44) and exempted service in 66D are to be read conjointly and not in exclusion of each other. This being the statutory definition sale of goods, be it made in the high sea or within territorial boundary of India in which Finance Act, 1994 has its force, cannot be called a service to impose tax liability or deny the credit under Rule 6 of Cenvat Credit Rules. The language imported in Rule 6(3AA) is therefore very clear and unambiguous that at the time of adjudication such option can be permitted to the assessee to be exercised in respect of the duty liability and interest to be calculated per annum from the due date for payment of amount for each of those months. Further, Rule 6(3AB) provides that the assessee has the option to pay an amount under clause (iii) of sub-rule (3) in the financial year 2015-16 and the provisions shall be deemed to be in existence till 30.06.2016 which indicates its retrospectivity. The order passed by the Commissioner (Appeals) confirming the duty demand along with interest and penalty is set aside - appeal allowed - decided in favor of appellant.

Summary

Issues involved:
1. Availment of cenvat credit on common input services against trading of goods on high sea without bifurcation.
2. Applicability of Rule 6(3AA) of Cenvat Credit Rules inserted in 2016.
3. Taxability of trading activity in India as a service.
4. Interpretation of statutory definitions regarding sale of goods and services.
5. Retrospective application of Rule 6(3AA) of Cenvat Credit Rules.

Detailed Analysis:
1. The case involved a challenge regarding the availment of cenvat credit on common input services against trading of goods on high sea without proper bifurcation for dutiable and exempted goods. The appellant company was found to have engaged in the sale of goods without maintaining separate accounts for common input services, leading to a duty demand notice. The appellant contested the allegation, citing the applicability of sub-rule 3AA to Rule 6 of Cenvat Credit Rules inserted in 2016, recalculating the duty liability and reversing the credit amount along with interest.

2. The adjudicating authority confirmed the duty demand, invoking the extended period, which was upheld by the Commissioner (Appeals). The appellant appealed to the Tribunal, arguing that Rule 6(3AA) of 2016 should apply retrospectively. The Tribunal considered the arguments presented by both parties and delved into the genesis of trading activity to determine its taxability in India, emphasizing the distinction between goods and services in the context of taxation.

3. The Tribunal analyzed the concept of trading as a service, referencing relevant legal definitions and judicial precedents. It highlighted that a pure sale, unassociated with the delivery of goods and services together, should not be considered a service for tax purposes. The statutory definitions of service and exempted service were examined to clarify the tax liability concerning the sale of goods, whether on high sea or within the territorial boundaries of India.

4. The Tribunal scrutinized the finding of the Commissioner (Appeals) regarding the retrospective application of Rule 6(3AA) of the Cenvat Credit Rules. It emphasized that the language of the rule permits the exercise of options by manufacturers or service providers in cases where the option was not initially exercised, allowing for the recalculation of duty liability with interest. The Tribunal concluded that the appellant correctly exercised the option under the rule, leading to the setting aside of the duty demand, interest, and penalty confirmed by the Commissioner (Appeals).

5. Ultimately, the Tribunal allowed the appeal, overturning the order of the Commissioner (Appeals) and setting aside the duty demand, interest, and penalty. The judgment clarified the retrospective application of Rule 6(3AA) of the Cenvat Credit Rules and underscored the importance of proper interpretation of statutory provisions in tax matters.