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TMI Blog2017 (11) TMI 1391X X X X Extracts X X X X X X X X Extracts X X X X ..... Hon ble Mr. Justice ( Dr. ) Satish Chandra, President And Hon ble Mr. V. Padmanabhan, Member ( Technical ) Sh. H. C. Saini, AR for the appellant -revenue Sh. Amit Jain, Advocate for the respondent-assessee ORDER Per: Justice (Dr.) Satish Chandra The present appal is filed by the Revenue against the order-in-original No. 20/SS/CE/D-II/2016-17 dated 26.12.2016, passed by the Commissioner of Central Excise, Delhi-II. The period of dispute is 2010 2011 and 2014-2015. 2. The brief facts of the case are that the respondent-assessee is engaged in the activity of manufacture of compressed natural gas (CNG) falling under Tariff Item 2711 21 00 of the First Schedule to the Central Excise Tariff Act, 1985 and clears the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mitted that since the respondent-assessee has reversed the proportionate credit of common input services availed towards manufacturing as well as trading activity, demand of 5%/ 6% under Rule 6(3)(i) is not sustainable. Further, vide letter dated 29.02.2016, respondent-assessee informed the Department that it had reversed the total common input services credit taken by it for financial year 2013-14 2014-15, on a suo motu basis. Vide their letter dt. 06.04.2016, respondent assessee intimated the department of further reversal of an amount for ₹ 11,44,422/- for financial year 2014-15. Lastly, he made a request to dismiss the appeal filed by the Revenue. 5. After hearing both the parties and on perusal of record, it appears that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l have effect of nullifying the very principle that no credit is available when there is no taxable output service. In other words, it is very clear that the respondent is eligible to take credit on only such input services, which are attributable to taxable output services. If there are common input services, without separate accounts, it is necessary for the respondent to avail so much of credit only, which are attributable to the taxable output service. This can be enforced by way of reversal of credit attributable to trading activities. We find that the legal position has been examined and decided by the Tribunal in Mercedes Benz India Pvt. Ltd. 2014 (36) STR 704 (Tri. Mum.). The said decision was affirmed by the Hon ble Bombay High C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f three options are not opted, then only option of payment of 5% provided under Rule 6(3)(i) shall be compulsorily made applicable, therefore we are of the view that Revenue could not insist the appellant to avail a particular option. In the present case admittedly it is appellant who have on their own opted for option provided under Rule 6(3)(ii). The meaning of the option as argued by the Ld. Sr. Counsel is that option of right of choosing, something that may be or is chosen, choice, the act of choosing. From the said meaning of the term option, it is clear that it is the appellant who have liberty to decide which option to be exercised and not the Revenue to decide the same. 9. In the light of the above decision of the coordinate Be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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