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TMI Blog2019 (6) TMI 1327X X X X Extracts X X X X X X X X Extracts X X X X ..... he law is well settled that an amendment can be considered to be declaratory and clarificatory, only if, the statute itself expressly and unequivocally states so; on the contrary, if there is no such clear statement in the statute itself, the amendment shall not be considered to be merely declaratory or clarificatory and cannot operate with retrospective effect - the legislature had never intended to give effect to the notification dated 01.03.2011 with retrospective effect inasmuch as, in such an eventuality, the amending notification/Rules, 2011 would have made effective either from the date of publication of the said notification in the official gazette or from the date of enactment of the Cenvat Rules in 2004. Whether, such amendment in the statutory provisions is to be construed as retrospective in effect or prospective, in order to be given effect to? - HELD THAT:- The law is amply clear that if a substantive law is introduced, the date of effect of the instrument through which the decision of legislation was conveyed should be considered as the relevant date, when the same was issued or published in the official gazette for the knowledge of the general public - thus the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xable services, defined under the Finance Act, 1994. During the period 2008-09 to 2010-11, the appellant had availed common input services used for trading activities and for provision of taxable service. Availment of cenvat credit was disputed by the department on the ground that prior to 01.04.2011, trading was not considered as an exempted service and therefore, taking of cenvat credit was not permissible as per Rule 3 of the Cenvat Credit Rules, 2004. The show cause notice dated 23.10.2013 issued by the department was adjudicated vide the impugned order dated 30.5.2014, wherein the learned Commissioner of Central Excise Service Tax, Pune has confirmed the proposed demand of Cenvat amount of ₹ 98,61,213/- along with interest and also imposed equal amount of penalty on the appellant. Certain amount deposited by the appellant prior to adjudication of the matter was appropriated in the impugned order. In support of denial of cenvat benefit, the learned adjudicating authority has held that trading activity undertaken by the appellant during the disputed period was neither to be considered as a service nor a manufacturing activity and hence, it cannot be treated as an exempte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e submitted that since the common input service credit was taken by the appellant prior to such effective date, the availment of credit is not in conformity with Rule 3 ibid and accordingly, the adjudicating authority has correctly confirmed the adjudged demand on the appellant. He has placed reliance on the judgment of Hon ble Supreme Court in the case of Union of India Vs. Martin Lottery Agencies Ltd.-2009 (14) S.T.R. 593 (S.C.) to substantiate the stand of Revenue that the amendment of Rule 2(e) ibid will have prospective effect and cannot be applied with retrospective effect. 4. Heard both sides and examined the case records. 5. It is an admitted fact on record that during the disputed period 2008-09 to 2010-11, the appellant had availed Cenvat credit of service tax paid on common input services namely, real estate agent s service, cleaning service, repair and maintenance service and security service for both the category of activities undertaken by it i.e. trading of goods and for provision of the taxable output services. Rule 3 ibid entitles a provider of taxable service to take Cenvat credit of duties and taxes paid on the inputs, input services and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the said amendment was either clarificatory or declaratory and should be given effect to retrospectively. The law is well settled that an amendment can be considered to be declaratory and clarificatory, only if, the statute itself expressly and unequivocally states so; on the contrary, if there is no such clear statement in the statute itself, the amendment shall not be considered to be merely declaratory or clarificatory and cannot operate with retrospective effect. Therefore, we are of the considered view that the legislature had never intended to give effect to the notification dated 01.03.2011 with retrospective effect inasmuch as, in such an eventuality, the amending notification/Rules, 2011 would have made effective either from the date of publication of the said notification in the official gazette or from the date of enactment of the Cenvat Rules in 2004. 5.4 Further, the legislative intent or mandate to levy duties or taxes on the goods and services is derivatives of the supreme law i.e. the Constitution of India. The yardstick was formulated in the supreme law, in the way that, in case of manufactured goods, the incidence of levy of Central Excise duty is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court in the case of Martin Lottery Agencies Ltd. (supra). Since, the law is well settled by the Hon ble Apex Court in context with retrospective or prospective operation of the statute, the principles enunciated in the case of Martin Lottery Agencies Ltd. (supra) will be considered as the guiding factor for deciding the issue involved in the present case. 5.6 In view of the above discussions, we do not find any infirmity in the findings recorded in the impugned order, holding that amendment to Rule 2(e) by Notification No. 3/2011-C.E.(N.T.) dated 01.03.2011 will have the prospective effect and cannot be applied retrospectively. Thus, we do not find any merits in the appeal filed by the appellant. 6. In this case, the department had issued the show cause notice on 23.10.2013, seeking for recovery of the irregularly availed Cenvat credit by the appellant during the period 2008-09 to 2010-11. The provisions of Rule 14 ibid read with the proviso to Section 73(1) of Chapter V of the Finance Act, 1994 were invoked for effecting recovery of the alleged demands. Section 73(1) ibid provides the manner of recovery of service tax not levied or paid or short levied o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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