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TMI Blog2017 (11) TMI 887X X X X Extracts X X X X X X X X Extracts X X X X ..... he service tax by reason of collusion, wilful misstatement, suppression of fact or contravention of the provisions of Rule with intend to evade payment of service tax and they have been filing the returns regularly - no penalty is imposable on the appellant u/s 78 of the FA because the condition for imposing the penalty under Section 78 is not present in this case and it was an interpretational issue and therefore, the penalty under Section 78 on the appellant dropped. Appeal allowed in part. - ST/21693/2015 - 22793/2017 - Dated:- 15-11-2017 - Shri S. S. Garg, Judicial Member Mr. S. Sarkar, CA For the Appellant Mrs. Kavitha Podwal, AR For the Respondent ORDER Per : S.S. GARG The present appeal is directed ag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... riginal authority that as per Rule 6(3) (C) of CENVAT Credit Rules, 2004, the appellant shall utilise credit only to the extent of an amount not exceeding 20% of the amount payable on taxable output services. The C F service provided by the appellant is used in relation to trading activity being an exempted service and hence the credit taken was held as inadmissible. Based on the above findings, the excess credit availed and utilised by them was disallowed and demand confirmed with appropriate interest. Penalty under Rule 15(3) of the CENVAT Credit Rules, 2004 and under Section 76 and 78 of the Finance Act, 1994 have also been imposed. Aggrieved by the Order-in-Original, appellant filed appeal before the Commissioner (A), who modified the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n support of his submission, he relied upon the following decisions: Tata Consulting Engineers Ltd. Vs. CST, Mumbai: 2014 (33) STR 655 (Tri.-Mum.) Sobha Developers Ltd. Vs. CCE, Bangalore : 2012 (276) ELT 214 4.2 He also referred to Larger Bench decision in the case of Sterlite Industries (I) Ltd. Vs. CCE: 2005 (183) ELT 353 (Tri.-LB) which was upheld by the Hon ble Bombay High Court reported in 2009 (244) ELT A89. 5. Therefore, by following the ratios of the above said decisions wherein it has been held that there is no requirement of reversal of CENVAT credit in relation to services provided to SEZ unit, I hold that denial of CENVAT credit to the tune of ₹ 1,70,754/- is set aside. 6. Further with rega ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arried out by same entity which provided taxable service. He also submitted that the trading activity cannot be equated with exempted goods or exempted services used in the manufacture or providing the output service. 6.1 On the other hand, the learned AR submitted that trading is not a service at all and for the trading activity, the appellant is not entitled to CENVAT credit of service tax. He further submitted that this issue has been settled by various decisions of the Court. In support of his submission, he relied upon the following decisions: M/s. FL Smidth Pvt. Ltd. Vs. CCE: 2014-TIOL-2186-HC-MAD-CX M/s. FL Smidth Pvt. Ltd.: 2014-TIOL-1439-CESTAT-MAD. Synise Technologies Ltd. : 2015-TIOL-1036-CESTAT-MUM. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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