9911796707
TMI Blog2016 (9) TMI 679X X X X Extracts X X X X X X X X Extracts X X X X ..... is not maintainable - Decided against the revenue. - E/54415/2014-EX(SM) - Final Order No. 70497/2016 - Dated:- 14-7-2016 - Shri Anil G. Shakkarwar, Member (Technical) For the Appellant: Shri Ashutosh Nath (Assistant Commissioner) A.R. For the Respondent: Shri Devinder Sharma, Advocate ORDER The present appeal is filed by Revenue against Order-in-Appeal No. MRT/EXCUS/002/APP/18/2014-15 dated 13-05-2014 passed by Commissioner (Appeals), Customs Central Excise, Meerut-ll. 2. The respondent's unit was visited by audit team of Revenue and conducted audit of the records on October 2009 to September 2010. It appeared to the audit team that the appellants were procuring acetic acid through import and they were availing Cenvat credit of CVD paid on said inputs and also Cenvat credit of Service Tax paid on inward transportation of said inputs. Initially, audit team considered that such goods were procured only for the purpose of trading. The respondent through their letter dated 16-9-2011 informed the authorities that acetic acid was their input which was used in manufacture of final product and that input was also sold by them and while clearing said input a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rules 3 (5) of said Rules and only reversal of credit availed on such inputs was required at the time of these clearances. He has relied on ruling by Hon'ble High Court of Punjab and Haryana in the case of Commissioner Central Excise Chandigarh-l Vs. Punjab and Haryana Steels reported at 2010 (21) STR 5 (P H). Through said Order-in-Appeal Commissioner (Appeals) set aside the said Order-in-Original dt. 28-02-2014 4. Aggrieved by the said Order-in-Appeal dated 13-05-2014 Revenue is in appeal before this Tribunal. The grounds of appeal by Revenue are given on Page 3,4,5, of their authorization for filing appeal which are as follows:- 1. That, the Rule 2(I) of the Cenvat Credit Rules, 2004 reads are under-; input service means any service,- (i) used by a provider of taxable service for providing an output service; or (ii) used by the manufacturer, whether directly or indirectly, in or in relation to the manufacture of final products and clearance of final products upto the place of removal, and includes services used in relation to setting up, modernization, renovation or repairs of a factory, premises of provider of output service or an office relating to suc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t in the case of UNION OF INDIA Versus RAJASTHAN SPINNING WEAVING MILLS cited in 2009 (238) E.L.T. 3 (S.C.) had held as under:- Para 18. One cannot fail to notice that both the proviso to sub-section 1 of Section 11A and Section 11AC use the same expressions: .by reasons of fraud, collusion or any wilful misstatement or suppression of facts, or contravention of any of the provisions of this Act or of the rules made thereunder with intent to evade payment of duty, . In other words the conditions that would extend the normal period of one year to five years would also attract the imposition of penalty. It, therefore, follows that if the notice under Section 11A(1) states that the escaped duty was the result of any conscious and deliberate wrong doing and in the order passed under Section 11A(2) there is a legally tenable finding to that effect then the provision of Section 11 AC would also get attracted. The converse of this, equally true, is that in the absence of such an allegation in the notice the period for which the escaped duty may be reclaimed would be confined to one year and in the absence of such a finding in the order passed under Section 11A(2) there would b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , as the case may be shall pay an amount equal to the credit availed in respect of such inputs or capital goods and such removal shall be made under the cover of an invoice referred to in rule 9 An audit objection has been raised that Cenvat credit taken in respect of service tax paid on input services like Customs Brokers charges, Clearing and Forwarding Agencies Services (C F), GTA etc. used for procurement/transportation of inputs/capital goods, should also be reversed at the time of clearance of inputs/capital goods as such from the factory of the manufacturer. The present Rule 3(5) of the Cenvat Credit Rules, 2004 does not mention 'Input Services' amongst the credits required to be reversed and therefore it is not possible to demand reversal of credit of input services. There is need to amend the rules so that reversal of credit taken on input services can also be achieved. Discussion Decision The conference noted that Rule 3(5) of the CENVAT credit Rules, 2004 does not provide for reversal in respect of input services for a reason. Input services are consumed once the inputs and capital goods are received in the factory. Thus on receipt of inputs and c ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
