2018 (11) TMI 909 - AT - Central Excise

Wrongful availment of CENVAT Credit - denial of credit on the ground that appellant were simultaneously claiming the full exemption from duty under N/N. 8/2003-CE dated 01.03.2003 - Held that - As per N/N. 8/2003-CE dated 01.03.2003, there is no bar for taking credit of Service Tax paid on input services. Further, there is a bar for taking credit of input used in the manufacture of final product. Further, as per Rule 3 of CCR, 2004 read with definition of Provider of Taxable Service , there is no bar to take CENVAT credit of service Tax during the period assessee is availing small-scale exemption under Central Excise Act. In the Notification, it is provided that the manufacturer shall not avail the credit of duty under Rule 3 or Rule 11 of CCR, 2002 on inputs used in the manufacture of specified goods - there is no reference to input services in the Notification - the CENVAT could not have been denied to the appellant - appeal allowed - decided in favor of appellant.

Issues:
- Appeal against rejection of appellant's appeal by Commissioner (A) regarding availing and utilizing CENVAT credit of input service while claiming full exemption under Notification No. 8/2003-CE dated 01.03.2003.
- Interpretation of Notification No. 8/2003-CE dated 01.03.2003 regarding availing CENVAT credit of Service Tax on input services.
- Compliance with Rule 3 of CCR, 2004 and definition of "Provider of Taxable Service" in relation to CENVAT credit.
- Validity of audit objection raised by Internal Audit Party of the Department.

Analysis:
1. The appeal was filed against the rejection of the appellant's appeal by the Commissioner (A) concerning the availing and utilization of CENVAT credit of input service while simultaneously claiming full exemption under Notification No. 8/2003-CE dated 01.03.2003. The appellant, a manufacturer of excisable goods, was observed to have utilized CENVAT credit of "Goods Transport Agency" services during the period of availing full exemption, leading to a Show Cause Notice being issued. The original authority confirmed the demand and imposed penalties, which were upheld by the Commissioner (A), resulting in the present appeal.

2. The appellant argued that the impugned order was not legally sustainable as Rule 3 of CCR, 2004 allowed for the credit on services, and the small-scale exemption did not prohibit taking credit of input Service Tax. The appellant contended that the Notification No. 8/2003-CE dated 01.03.2003 did not restrict availing credit of tax on input services during the exemption period, and the audit objection lacked a valid basis.

3. The learned AR defended the impugned order, leading to a detailed analysis by the tribunal. After reviewing the submissions and the relevant legal provisions, the tribunal found that the Notification No. 8/2003-CE dated 01.03.2003 did not prohibit taking credit of Service Tax paid on input services. Additionally, Rule 3 of CCR, 2004 and the definition of "Provider of Taxable Service" did not impose a bar on claiming CENVAT credit of Service Tax during the period of availing small-scale exemption under the Central Excise Act.

4. The tribunal emphasized that the Notification specifically restricted availing credit of duty on inputs used in the manufacture of specified goods but did not mention input services. Therefore, the tribunal concluded that there was no legal basis to deny CENVAT credit to the appellant for the input services utilized. Consequently, the tribunal set aside the impugned order, allowing the appeal of the appellant with any consequential relief.

This detailed analysis of the judgment highlights the key issues raised, the arguments presented by both parties, and the tribunal's reasoning leading to the decision to set aside the impugned order.

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