2019 (4) TMI 1599 - AT - Service Tax

CENVAT Credit - input services - common input services used for taxable as well as exempt services - non-maintenance of separate records - HELD THAT - The very basis of the finding is not sustainable in law as the Department has failed to prove that these input services are also used in or in relation to the provisions of exempted services i.e. trading in securities. In the absence of such co-relation, Rule 6(3) is not applicable. Appeal allowed - decided in favor of appellant.

Summary

Issues:
1. Whether trading in mutual funds falls under exempted services as per Section 66D (e) of the Finance Act, 1994.
2. Whether the appellant availed and utilized credit on input services for both taxable and exempted services without following Rule 6 of Cenvat Credit Rules, 2004.

Analysis:

Issue 1: Trading in mutual funds as exempted services
The case involved a dispute regarding whether trading in mutual funds should be considered as "trading in goods" falling under the negative list of exempted services as per Section 66D (e) of the Finance Act, 1994. The department argued that such activities are exempted from taxation under Section 66B of the Finance Act, 1994. The appellant contended that their investment in mutual funds was for liquidity management and not regular buying and selling of securities. The Tribunal found that the appellant's investment in mutual funds was not akin to trading in securities but was a strategic investment for liquidity management. The gain from mutual funds was treated as capital gains, not business income. The Tribunal concluded that the appellant was not engaged in the business of trading in securities, and therefore, the impugned order classifying the activity as exempted services was not sustainable in law.

Issue 2: Compliance with Cenvat Credit Rules
The appellant was accused of availing and utilizing credit on input services for both taxable and exempted services without following Rule 6 of Cenvat Credit Rules, 2004. The Commissioner (Appeals) upheld the demand for 6% of the value of exempted services based on the alleged non-compliance. However, the Tribunal found that the appellant had not utilized common input services for trading in mutual funds. As there was no evidence to prove that the input services were used for exempted services, the Tribunal held that Rule 6(3) was not applicable. Therefore, the Tribunal set aside the impugned order and allowed the appeal of the appellant, providing consequential relief.

In conclusion, the Tribunal ruled in favor of the appellant, stating that trading in mutual funds was not to be considered as exempted services and that the appellant did not contravene the Cenvat Credit Rules in availing credit on input services.