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TMI Blog2015 (11) TMI 50X X X X Extracts X X X X X X X X Extracts X X X X ..... le 6(3)(ii)and procedure as prescribed under sub rule (3A) of Rule 6 is not relevant because it is relevant only when appellant undertake to pay proportionate credit attributable to exempted service - Demand raised under Rule 6(3)(i) is not sustainable - Decided in favour of assessee. - APPEAL NO. ST/89839/14-MUM - Final Order No. A/3186/2015-WZB/SMB - Dated:- 10-7-2015 - Mr. Ramesh Nair, Member (Judicial) Shri. Sumeet C. Thole, C.A. : For the Petitioner Shri. Sanjeev Nair, Examiner (A.R.) : For the Respondent ORDER Per : Ramesh Nair This appeal is directed against Order-in- Appeal No. AV(189) 189/2014 dtd. 2/9/2014 passed by the Commissioner (Appeals), Central Excise Customs, Aurangabad, wherein Ld. Commissioner upheld the order in original dated 23/4/2014. 2. The fact of the case is that the appellant is Cooperative Bank and engaged in providing banking and financial services. The availed Cenvat credit in respect of common input services amounting to ₹ 3,585/- during the period April 2008 to March 2009. Show cause notice dated 13/6/2013 was issued to the appellant wherein it was alleged that the appellant is engaged in various banking and oth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f inputs used in exempted services as well as taxable service came into effect only by Notification No. 3/2011-CE (NT) dated 1/3/2011 and prior to that there was no requirement of maintenance of separate account. Therefore the condition made effective on or after 1/3/2011 could not made applicable in the appellants case which is admittedly for the period April, 2008 to March, 2009. He further submits that in fact Rule 6(3) in any case shall not apply in the appellants case for the reason that the appellant, not only proportionate to exempted services but even entire service tax credit reversed which was total of meager amount of ₹ 3585/- alongwith interest @ 18%. It is his submission that once the entire credit has been reversed along with interest, any of the cenvat credit rules shall not apply for the reason that any of the Cenvat credit rule applied only when credit stand availed. In the present case the Cenvat credit has been reversed in toto alongwith 18% interest, it is as if no Cenvat credit was availed. Hence the provisions of Cenvat credit Rules, 2004 shall not apply. He further submits that during the period involved in the present case, there were three options a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id provisions accordingly the option available under Rule 6(3)(ii) is not available to the appellant. Since the appellant have not followed the procedure for maintaining the separate account, the only option left is to pay an amount @ 8% of the value of the exempted service. As regard the claim of the appellant on retrospective amendment made by Section 74 of Finance Act, 2010, he submits that even in this retrospective amendment for regularizing case of Rule 6 was available only on observance of certain procedure. According to the procedure prescribed, the appellant should have paid the amount of Cenvat credit attributable to the exempted service alongwith interest @ 24%. However the appellant have not complied with said procedure and did not file any application to the Commissioner for claim the amnesty scheme therefore at this stage the benefit of such scheme can not be extended to the appellant. He heavily placed reliance on the Honble Bombay High Court judgment in case of CCE, Pune Vs. Nicholas Piramal (India) [2009(244) ELT 321(Bom)]. He submits that in view of the above judgment assessee is required to follow the procedure as prescribed under Rule 57(C) of erstwhile Central ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al of interest. In the present case the disputed value is of interest and Cenvat credit up to 50% of credit was required to be reversed. However the appellant admittedly paid the entire service tax credit availed by them during the 2008 - 2009 alongwith interest @ 24% (18% + 6% subsequently) therefore even in view of provisions under Rule 6(3), the appellant could not be asked to pay 8% of the interest amount in terms of Rule 6(3)(ii). I found that during the period involved 2008-09, apart from provisions of Rule 6(3)(i) another option under Rule 6(3)(ii) was available to the appellant according to which the appellant was under obligation to pay an amount equal to Cenvat credit attributable to exempted service subject to certain condition and procedure. I find that appellant has paid entire service tax credit alongwith interest, therefore procedure as prescribed under sub rule (3A) of Rule 6 is not relevant for the reason that the said procedure is relevant only when the appellant undertake to pay proportionate credit attributable to the exempted service. Therefore in my considered view the appellant, since paid entire service tax alongwith interest under Rule 6(3)(ii), appellant c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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