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TMI Blog2018 (7) TMI 1131X X X X Extracts X X X X X X X X Extracts X X X X ..... The facts were very much in the notice of the Department at least since the admitted letter but as proven on record since the prior letter of 01.05.2009 - there is no apparent suppression of facts or fraud committed on part of appellant as is alleged - Otherwise also, appellant is a public sector bank, there seems no motive to have malafide intentions to evade the payment of service tax - extended period cannot be invoked. Appeal allowed - decided in favor of appellant. - Service Tax Misc. Application No. ST/MISC/50152/2018, Service Tax Appeal No. ST/52192/2015–CU [DB] - FINAL ORDER NO. 52518/2018 - Dated:- 17-7-2018 - HON BLE MR. V.PADMANABHAN, MEMBER (TECHNICAL) And HON BLE MRS. RACHNA GUPTA, MEMBER (JUDICIAL) For the Appellant : Mr. A.K. Batra, CA For the Respondent : Mr. Amresh Jain, D.R. ORDER PER : RACHNA GUPTA Present is an Appeal against Order-in-Original dated 26.03.2015 of Commissioner Central Excise, Jaipur vide which the demand has been confirmed alongwith the interest and imposition of penalty. The facts relevant for the purpose are that the appellant is engaged in providing Banking and other Financial Services as defined under Section 65(12) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e as well as exempted services and they are not maintaining the separate account for the inputs thereof. It is a mandatory provision of law as is apparent from Rule 6 (2) CCR. In case of non compliance, assesse is required to pay an amount equal to 5% or 6% of total price of the exempted services/ the inputs thereof, as per Rule 6(3) (b) of CCR, 2002. While relying upon Commissioner of C. Ex., Thane-I vs Nicholas Piramal (India) Ltd. 2009 (244) E.L.T. 321 (Bom.), the Ld DR has justified the impugned order and prayed for the Appeal to be set aside. 4. After hearing both the Counsels, we are of the considered opinion that the Department has conducted the audit for impugned period on 04.01.2011 and no objection was raised regarding intimation under Rule 6(3)(A) of CCR, 2004. During the disputed period except for raising a small demand of ₹ 6,654/- on the ground of short reversal of input service, credit in respect of exempted services under Rule 6(3), CCR and non payment of interest on upheld payment of service tax. It is also apparent that the said amount was paid by the appellant. It is only in the subsequent audit dated 05.03.2012 that the impugned objection was raised on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al products or in providing output service and the quantity of input meant for use in the manufacture of exempted goods or services and take CENVAT credit only on that quantity of input or input service which is intended for use in the manufacture of dutiable goods or in providing output service on which service tax is payable. (3) Notwithstanding anything contained in sub-rules (1) and (2), the manufacturer of goods or the provider of output service, opting not to maintain separate accounts, shall follow either of the following options, as applicable to him, namely:- (i) the manufacturer of goods shall pay an amount equal to five per cent. of value of the exempted goods and the provider of output service shall pay an amount equal to six percent. of value of the exempted services; or (ii) the manufacturer of goods or the provider of output service shall pay an amount equivalent to the CENVAT credit attributable to inputs and input services used in, or in relation to, the manufacture of exempted goods or for provision of exempted services subject to the conditions and procedure specifiedin sub-rule (3A). Explanation I.- If the manufacturer of goods or the pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Life Insurance 2017 (5) TMI 1994 (Tri. New Delhi). In another case decided by the Tribunal Mumbai, i.e. Mercedes Benz vs CCE Pune 2015 (40) STR 381 where it was held that there is no provision that if the assesse fails to opt any of the option at a particular time, then option of payment of 5% will automatically be applied. Where the assesse has categorically by way of intimation opted for option provided under 6(3)(ii), CCR then the Revenue cannot insist the assesse to opt for Rule 6(3)(i). Keeping in view the entire above discussion we are of the opinion that the Adjudicating Authority has failed to interpret Rule 6(3) CCR properly while confirming the impugned demand. 7. Now coming to the plea of limitation on the ground that the impugned demand pertains to the period for April, 2009 to September, 2010 and the Show Cause Notice is dated 19.04.2014, i.e. much beyond the prescribed period of one year, it is observed that no doubt the Department can invoke the extended period of limitation but only in case where there is some apparent suppression of facts on part of the assesse or there is an act on its part which may amount to fraud. In the present case, as is already observed ..... X X X X Extracts X X X X X X X X Extracts X X X X
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