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TMI Blog2017 (2) TMI 482X X X X Extracts X X X X X X X X Extracts X X X X ..... that appellant is availing cenvat credit on the common input services such as Advertising Agency or Travel Agent, Business Support Service, Business Auxiliary service, Business Exhibition Service, Cargo Handling Servcie, Chartered Accountant, Clearing & Forwarding, Courier Insurance, Telephone, Manpower Recruitment and Supply, Travel Agent, CHA, Online Data, GTA, Rent-a-Cab, etc. Since these are common input services availed by the appellant for procuring, processing and selling of their goods, in the show cause notice the credit on the common input services attributed to the trading activity was proposed to be recovered as the same was not used in manufacture of dutiable goods. The adjudicating authority confirmed the demand and the Commi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Central Excise, Pune-II [2016-TIOL-1314-CESTAT-MUM] 3. Shri. S.V. Nair, Ld. Asstt. Commissioner(A.R.) appearing on behalf of the Revenue reiterates the findings of the impugned order. 4. I have carefully considered the submissions made by both sides and perused the record. 5. I find that the credit was denied on the ground that the common services were used in the trading activity also. Since the trading activity is not taxable, the Cenvat credit used in such activity was denied. I observe that as regard the trading activity specific amendment was made in the Cenvat Credit Rules, w.e.f. 1-4-2011 as per Notification No. 3/2011 CE(n.t.) dated 1-3-2011 wherein the trading activity was incorporated in the definition of exempted services acco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iff Motors (supra) similar facts were involved that the assessee had availed the Cenvat credit in respect of GTA service which is used for transportation of motor cycles from factory to show room which were sold as such and credit was utilized for payment of service tax under authorized service station. The Division Bench has allowed the credit on GTA service. This decision has been upheld by the Hon'ble Andhra Pradesh High Court. The operative order s portion is reproduced below : "The Andhra Pradesh High Court Bench comprising Hon'ble Mr. Chief Justice Kalyan Jyoti Sengupta and Hon'ble Mr. Justice Sanjay Kumar on 19-12-2013 dismissed the Central Excise Appeal No. 91 of 2010 filed by Commissioner of Customs, Central Excise & Service Tax, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to reverse the Cenvat credit attributed to the trading activity of passenger cars. As regard the judgments relied upon by the Revenue in the case of Mercedes Benz India Pvt. Ltd. (supra). I find that this matter was taken to the Hon'ble Bombay High Court when the matter was remanded back to the Tribunal therefore the ratio of the judgment of the Tribunal cannot be applied. As regards Synise Technologies Ltd. (Supra), I find that it is a Single Member Bench decision of this Tribunal wherein the Division Bench decision of the Shariff Motors (supra) though distinguished this Synise Technologies Ltd. judgment has followed the Mercedes Benz decision of this Tribunal. Since the Tribunal order was set aside and matter was remanded, Synise Technol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under Section 78 of the Act read with Rule 15(3) of the CCR. As regards the imposition of penalty under Section 77, I agree with the Ld. Adjudicating Authority." From the above finding, the Ld. Commissioner (Appeals) has conclusively held that in the absence of ingredients such as fraud, collusion, suppression of fact, etc., with intent to evade payment of duty, the penalty is not imposable under Section 78. The Revenue has not challenged this finding therefore the same attained finality. Considering this finding which equally applicable in case of invocation of extended period in terms of proviso to Section 73, the demand is not sustainable on the ground of time-bar also. As per my above discussion, I am of the considered view that the i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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