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TMI Blog2017 (11) TMI 33X X X X Extracts X X X X X X X X Extracts X X X X ..... ing authority has noted that there is no clarity whether the payment made by the assessee has covered all the input services which are used in exempted output services - having observed that the details given by the appellants are not clear and each transaction is required to be verified, the adjudicating authority nonetheless goes ahead to confirm the disallowance of CENVAT credit of ₹ 91,16,244/- apparently taken in excess and irregularly, without any justification for that decision. In our view, such peremptory confirmation of demand without resolving the very evident confusion in the working thereof, cannot be sustained - matter on remand. Legality of demand of ₹ 34,20,440/- for the period April 2008 to March 2010 under R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing Services (CHS). They were availing CENVAT credit on inputs/input services used for providing the output services. They were also claiming exemption from payment of service tax on the amount received towards providing the service on export cargo, service provided to SEZ units etc., during the course of audit it emerged that appellants were availing common input services like port service, CFS charges, survey fees, telephone services etc., which were utilised for both taxable output services as well as the exempted services. It appeared that appellants were not maintaining separate accounts for receipt, consumption and inventory of input/input services meant for used in output services as required in terms of Rule 6(2) of the CENVAT Credi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issioner relying on the decisions of the Tribunal referred to in Para 12 (f) has recorded in Para 12 (g) that the payment of the entire amount of CENVAT credit by the assessee has satisfied the compliance of Rule 6(3)(i). However, the Commissioner has confirmed both the demands in the impugned order by holding in Para 12(h) that it was not clear whether the payment was on all input services and that the assessee has not exercised clear option under Rule 6(3). (iv) The reasoning of the Commissioner is not correct on facts. The Commissioner has recorded in Para 12 (c) that the assessee has paid the entire amount of common input services along with interest . Having recorded once again in Para 12 (g) that the payment of entire amount of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpted or non-taxable service in terms of Yes or No. Table 5AA of ST-3 Return provides for value of exempted service and the amounts payable under Rule 6(3) of the CENVAT Credit Rules, 2004. From the perusal of table it may be seen that the same provides for disclosure of the value of exempted services provided, amount paid under Rule 6(3) of CCR, 2004 in CENVAT cash and total amount paid. However, there is no column for disclosure of the value of non-taxable service which are excluded from levy of service tax as in case of cargo handling service in relation to export cargo. When there is no provision for disclosure of the amount of non-taxable service provided by the assessee, the same cannot be said to be suppression of facts. 3. On ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of entire amount of CENVAT credit availed irregularly and accordingly the violation of Rule 6(1) of the CCR, 2004 has been made good, the adjudicating authority has noted that there is no clarity whether the payment made by the assessee has covered all the input services which are used in exempted output services . The adjudicating authority has also found as follows: The assesses, while giving reply to the SCN, made an effort to establish the usage of input services mentioned at (i) above in taxable output services. However, it is not clear as to whether the said input services are exclusively used for taxable output services from the statement or the reply. In case any input service credit as mentioned at (i) above is used in exe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of exempted service has been arrived at ₹ 46,205,740/-, based on which the amount payable as per Rule 6(3)(i) of CCR, 2004 at 8% for the period March 2008 to June 2009 and @ 6% from July 2009 has been worked out as ₹ 34,20,440/- 7.2 In this regard, we find that the manner of calculation of 6% or 8% on value of exempted services has not been disputed by the appellant. We also find that with effect from 01.04.2008, Rule 6(3) the CCR, 2004 was specifically amended to bring forth this method of calculation for purposes of Rule 6(3). This being the case, we do not find any infirmity in that portion of the impugned order upholding the demand of ₹ 34,20,440/-, along with interest liability thereon, for the period April 2008 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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