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TMI Blog2018 (7) TMI 1054X X X X Extracts X X X X X X X X Extracts X X X X ..... td. [2014 (7) TMI 76 - CESTAT NEW DELHI] has held that trading was an exempted service even prior to 01.04.2011 and therefore by following the ratio of the decision, the CENVAT credit availed on common input services relating to trading activity is required to be reversed by the appellant proportionately and therefore this issue is decided against the assessee - credit not allowed - also it is held that the demand is not barred by limitation. CENVAT Credit - sales rejects under Rules 16 - goods returned from EOU - it was alleged that appellant did not repair or return the goods and stored them as scrap - Held that:- Since the goods are lying with the appellant and as and when the appellant would clear those goods then he will pay the requisite Excise duty - demand at this stage not sustainable - further, it is a settled position that the charging of duty by supplier cannot be questioned at the recipient end - demand set aside. Appeal allowed in part. - E/21167/2017-SM - 20848/2018 - Dated:- 29-6-2018 - SHRI S.S GARG, JUDICIAL MEMBER Shri Bhanumurthy, Advocate For the Appellant Shri N. Jagadish, Superintendent (AR) For the Respondent ORDER Per: SS GARG ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id goods were returned under the cover of Debit Notes on the basis of which cenvat credit has been availed in terms of Rule 16 of the Central Excise Rules 2002. He further submitted that the credit cannot be denied as Debit Note contains all the details as required for availment of credit. He further submitted that there is no allegation as to the receipt of goods or payment of duty and hence the credit should not be denied on procedural lapses if any. In support of his submission, he relied upon the following decisions: a. CCEx., Cust., Surat II V. Santogen Spinning Mills - 2009 (234) E.L.T. 100 (Tri. -Ahmd.) b. CCEx., Ghaziabad V. Majestic Auto Ltd - 2008 (230) E.L.T. 151 (Tri. -Delhi) c. Dhampur Sugar Mills Ltd. V. CCE - 2010 (260) E.L.T. 106 (Tri.-Del.) He also submitted that the order of the original authority travels beyond the scope of show-cause notice inasmuch as there was no allegation in the show-cause notice that the goods are not returned back -to the factory. In support of this submission he relied upon the decision in the case of CC Vs. Toyo Eng. India Ltd. - 2006 (201) 513 (S.C). Secondly with regard to demand of reversal of common input s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t Rules, 2004. He further submitted that the learned Commissioner (Appeals) has observed that the Debit Notes do contain certain details with reference to the invoices under which it was originally sent by the appellant. But the complete details as required under Rule 11 of the Central Excise Rules 2002 are not stated in the Debit Notes. The Commissioner (Appeals) has further observed that the lower authority has found that the goods were neither received nor accounted for. With regard to credit on common input services relating to trading, the learned AR submitted that trading was not an exempted service even prior to 01.04.2011 and therefore the cenvat credit taken on common input services relating to trading is not legal and proper. He further submitted that this issue has been considered by the Tribunal and the High Court in number of cases and it has been held consistently that trading is not an exempted service and therefore, the assessee is not entitled to take cenvat credit on common input services relating to trading. In support of this, he relied upon the following decisions: a. M/s. Ruchika Global Interlinks Vs. CESTAT, Chennai CST, Chennai - 2017-TIOL-1235-HC-MAD- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... availment of credit on the basis of Debit Notes is concerned, I find that the Debit Note contains all the details as required for availment of credit. Further I find that the copies of Debit Notes have also been placed on record and in the Debit Notes the assessee has mentioned the Invoice No. by which the goods were originally sent by the appellant relates to and therefore it can easily be ascertained that the goods received by the assessee is the same as was originally sent. Further I find that the original authority as well as Commissioner (Appeals) who has upheld the Order-in-Original has travelled beyond the show-cause notice inasmuch as there was no allegation in the show-cause notice that the goods are not returned back to the factory. The only allegation in the show-cause notice is that Debit Note is not a valid document as per Rule 9 of Cenvat Credit Rules. With regard to the reversal of common input services relating to trading activity is concerned, I am of the view that this issue has been considered by the High Court of Madras in the two decisions cited supra as well as the Division Bench of the Tribunal in the case of HCL Infosystem Ltd. it has been held that trading ..... X X X X Extracts X X X X X X X X Extracts X X X X
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