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TMI Blog2017 (7) TMI 526X X X X Extracts X X X X X X X X Extracts X X X X ..... (3) TMI 1355 - CESTAT ALLAHABAD], where it was held that there is no allegation in the said Cause Notice that the appellants had taken credit of any inadmissible Cenvat credit. Further the Show Cause Notice dated 09/05/2011 states that Rule 6 of Cenvat Credit Rules, 2004 is not applicable in the present case. Therefore, the said Show Cause Notice did not make out a case for invocation of provisions of Rule 14 of Cenvat Credit Rules, 2004 - appeal allowed - decided in favor of appellant. - ST/51042/2014-CU[DB] - ST/A/70597/2017-CU[DB] - Dated:- 19-6-2017 - Mr. Anil Choudhary, Member (Judicial) And Mr. Anil G. Shakkarwar, Member (Technical) Shri Atul Gupta. Advocate, for Appellant Shri Rajeev Ranjan, Joint Commissioner (AR), for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the output service provider is engaged in both providing output service chargeable to service tax as well as exempted services and that trading activity was neither manufacture nor taxable service and further that Cenvat credit of service tax paid on services attributable to trading was void ab-initio and there was no application of said Rule 6 to trading activity. It was further stated in the said show cause notice that in such situation the remedy lied in reversal of Cenvat credit in the ratio of turnover of trading goods of the total turnover on the strength of case law in the case of M/s Orion Appliances Ltd. Vs CST, Ahmedabad reported at 2010-TIOL-752-CESTAT-AHM M/s Metro Shoes Pvt. Ltd. Vs Commissioner of Central Excise, Mum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 09-10, attributable to trading activity should not be disallowed and recovered with interest under Rule 14 of Cenvat Credit Rules, 2004 read with Section 73 of the Finance Act, 1994. It, further, proposed to appropriate Cenvat credit of ₹ 1,17,79,338/-deposited by appellant. There was a proposal to impose penalty under Rule 15 of the said rules on the appellant. The said show cause notice was adjudicated through impugned Order-in-Original dated 31.12.2013 wherein the original authority confirmed the demand under Rule 14 of Cenvat Credit Rules, 2004 read with Section 73 of the Finance Act, 1994 and appropriated the amount already deposited. The original authority further imposed equal penalty on the appellant under Rule 15 of Cenvat Cr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as per para-6 is reproduced below:- 6. Having considered the al contentions and on perusal of record, find that in the present case, M/s L. G. Electronics India Pvt. Ltd. was manufacturing the goods and also trading the goods on being imported and being procured from other manufacturers. They were taking Cenvat credit on service tax paid on input service as stated earlier. The show cause notice has proposed to recover Cenvat credit of ₹ 45.63 crores under Rule 14 of Cenvat Credit Rules. 2004. For the computation of alleged inadmissible Cenvat credit that was proposed to be recovered the method adopted was on the basis of turnover of manufacture and turnover of trading a ratio was calculated and total Cenvat credit of Service tax ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... missible Cenvat credit. Further the Show Cause Notice dated 09/05/2011 states that Rule 6 of Cenvat Credit Rules, 2004 is not applicable in the present case. Therefore, the said Show Cause Notice did not make out a case for invocation of provisions of Rule 14 of Cenvat Credit Rules, 2004. Therefore, Show Cause Notice was not sustainable for the reasons that the contention in the Show Cause Notice did not allow recovery of Cenvat Credit under Rule 14 of Cenvat Credit Rules, 2004. Therefore, the proposal for recovery of Cenvat credit, interest on the same and penalty is not sustainable. We, therefore, set aside the impugned Order-in-Original and all the appeals. Floe appellant shall be entitled to consequential relief, if any, in accordance w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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