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TMI Blog2018 (5) TMI 1194X X X X Extracts X X X X X X X X Extracts X X X X ..... 10 issued a SCN for irregular availment of CENVAT credit of service tax paid on service relating to trading activity and thereafter no show-cause notice was issued except impugned SCN whereas the audit was conducted from time-to-time in between - the appellant is not required to follow Rule 6 - appeal allowed - decided in favor of appellant. - E/20061/2018-SM - Final Oder No 20550/2018 - Dated:- 9-4-2018 - Shri S.S Garg, Judicial Member Shri C.B. Eswarappa, Advocate-For the Appellant Shri Parashivamurthy, Dy. Commissioner(AR)-For the Respondent Order Per : S.S GARG The present appeal is directed against the impugned order dt. 03/10/2017 passed by the Commissioner(Appeals) whereby the Commissioner(Appeals) has re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sel for the appellant submitted that the impugned order is not sustainable in law as the same has been passed without properly appreciating the facts and the evidence on record. He further submitted that both the authorities have failed to appreciate the precedent order No.3/2015 dt. 30/07/2015 which was brought to the notice of both the authorities and the said order finds mention in the impugned order but there is no discussion and finding on the same in the impugned order. He further submitted that the irregular availment of CENVAT credit of service tax paid on services relating to trading activity was raised for the first time covering the period 2007-08 to 2010-11 (upto 05/2010) and thereafter during the subsequent audit, no objection ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the other services viz. labour charges, testing charges, erection commission charges, repair and maintenance service, GTA, security agency service, forwarding charges, manpower recruitment agency service, professional charges etc. are exclusively used for the manufacturing activity. Learned counsel further submitted that this order has not been challenged by the Department and as per this order, there are three common input services i.e. telephone, internet and courier on which the appellant has not taken any CENVAT credit. Therefore Rule 6 does not apply and the appellant is not required to reverse the same. 5. On the other hand, the learned AR defended the impugned order. 6. After considering the submissions of both sides and pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ave confirmed the demand as the appellant has not taken the CENVAT credit on the common input services relating to manufacturing and trading activity. It is also a fact that the Department on the basis of the first audit conducted on 18/02/2010 issued a show-cause notice for irregular availment of CENVAT credit of service tax paid on service relating to trading activity and thereafter no show-cause notice was issued except impugned show-cause notice whereas the audit was conducted from time-to-time in between. Further I find that the Department has miserably failed to find out the common input services on which the appellant has taken the CENVAT credit. In the absence of this, I am of the opinion that the appellant is not required to follow ..... X X X X Extracts X X X X X X X X Extracts X X X X
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