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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 ..... rpose are that the appellant is engaged in providing Banking and other Financial Services "as defined under Section 65(12) of the Finance Act, 1994" (the Act in short) and taxable under Section 65(105) (zm) of the Act. After an audit, it was observed that the appellant was also engaged in providing the exempted services and has availed and also utilised the cenvat credit in providing both types of the services but has failed to maintain separate records as required under Rule 6 Sub Rule 2 (iii) of Cenvat Credit Rules, 2004 (CCR in short). As a result, there has been a non payment for an amount of Rs. 22,97,84,665/- on the value of the exempted service and Rs. 3,57,68,43,598/- received for the period w.e.f. April 2009 to June 2010. Alleging ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elhi 2014(6)TMI 628-CESTAT, New Delhi and Nizam Sugar Factory vs Collector of Central Excise 2006(197) E.L.T. 465 (S.C.). 3. While rebutting these arguments, Ld. DR has impressed upon that it is an admitted case of the appellant that they are rendering taxable 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 justifie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t. The Adjudicating Authority below has failed to appreciate the said evidence. Thus, it becomes clear that there is no absence of proper intimation as required under Rule (6) (3A) CCR. The only question now remains to be adjudicated is whether the appellant is still liable to pay 6% of the value of exempted services as is alleged vide impugned Show Cause Notice and is confirmed vide the Order under challenge. For this purpose, it is important to know Rule 6 CCR which reads as under: Rule 6. Obligation of manufacturer of dutiable and exempted goods and provider of taxable and exempted services.- (1) The CENVAT credit shall not be allowed on such quantity of input or input service which is used in the manufacture of exempted goods or fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 provider of output service, avails any of the option under this sub-rule, he shall exercise such option for all exempted goods manufactured by him or, as the case may be, all exempted services provided by him, and such option sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t if the register as required is maintained credit, can be taken for quantity of the imports used in rendering the taxable services if records are not maintained, as required, the duty is to be paid in terms of Rule 6(3) as discussed above. However, the appellant is entitled to exercise the option as provided under Rule 6(3) in absence of maintaining the proper records. The word used in the provision is „option‟, which clarifies that it is the appellant who has liberty to decide which option to be exercised and Revenue cannot insist the appellant to avail a particular option. We draw our support from the case CCE vs Max New York Life Insurance 2017 (5) TMI 1994 (Tri.-New Delhi). In another case decided by the Tribunal Mumbai, i. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ord. 8. Further, it is also apparent and admitted that the appellant sent the same intimation to the Department for the period April, 2010 to March, 2011 vide its letter dated 02.07.2010. It becomes clear that 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. From the observation that at the time of first audit on 04.01.2011, no such objection was ever raised by the Department as the one in question, the principle of estoppels is also very much applicable against the Department from raising an objection that too beyond the period of limitation. We accordingly conclude that there is no apparent suppression of facts or fraud committed on p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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