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TMI Blog2020 (7) TMI 264X X X X Extracts X X X X X X X X Extracts X X X X ..... ame is still pending - Appeal allowed - decided in favor of appellant. X X X X Extracts X X X X X X X X Extracts X X X X ..... ine Thousand and Sixty Two only). The total amount of input services availed relating to the rebate claim was ₹ 14,38,94,308/- (Rupees Fourteen Crore Thirty Eight Lakhs Ninety Four Thousand Three Hundred and Eight only). Further it appeared that appellants have availed 100% credit on the following services: Sl.No. Services Eligible for 100% credit under the Rule 6(5) of the CCR, 2004 1 Commissioning & Installation (zzd) 2 Security (W) 3 Management and Maintenance & Repair Service (zzg) 4 ITSS (Service provider) (zzzze) does not form part of the 16 services 5 ITSS (Import payment) Service Recipient 5. It appeared to Revenue that ITSS service is not covered under Rule 6(5) and the appellants have availed 100% credit both as service provider and service recipient, which is incorrect and the credit so availed is to be restricted to 5% alone. It further appeared that appellants have availed excess credit in respect of other services. 6. It further appeared that the amount of ineligible cenvat credit attributable to exempted services, the appellants should have applied the percentage of ineligible credit, included under Rule 6(3A) of CCR to the credit availed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -08 (previous financial year) and reworked out the quantum of services pertaining to exempted activity for the year 2008-09 @ 95% of the credit availed by them, as pertaining to activities exempted and other than the taxable services and therefore by their own submissions, the credit availed by them to the tune of 95% does not pertain to the taxable services rendered by them. Accordingly, it appeared that out of the total input credit of ₹ 25,77,02,690/- (Rupees Twenty Five Crore Seventy Seven Lakh Two Thousand Six Hundred and Ninety only) taken for the year 2008-09, 95% of the credit or ₹ 20,55,85,446/- (Rupees Twenty Crore Fifty Five Lakhs Eighty Five Thousand Four Hundred and Forty Six only) is ineligible and out of the balance of ₹ 5,21,17,244/- (Rupees Five Crore Twenty One Lakh Seventeen Thousand Two Hundred and Forty Four only) the credit is ineligible as the services do not fall under the purview of 'input services' or the invoices are lacking in one respect or another. Accordingly, show-cause notice dated 23/10/2009 was issued for the period 2008-09 proposing to disallow and recover cenvat credit of ₹ 25,77,02,690/- (Rupees Twenty Five Crore Seventy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ss auxiliary' service for the year 2008-09 since it was ordered that in the event service tax credit of ₹ 14,14,46,763/- (ST+EC+SHEC) which is held as irregular/inadmissible, is utilized for payment of service tax, an amount to the extent of the utilization of irregular/inadmissible service tax credits shall be recovered from M/s. DIPL by cash, in view of the proviso to Rule 3(4) of the Cenvat Credit Rules, 2004; 9.3 Demanded interest at applicable rates on amount of ₹ 14,14,46,763/- [service tax + education cess + secondary & higher education cess] from M/s. Dell India Private Limited under the provisions of Rule 14 read with Section 75 of the Finance Act, 1994; 9.4 Imposed a penalty of ₹ 14,14,46,763/- (Fourteen Crore Fourteen Lakh Forty Six Thousand Seven Hundred and Sixty Three) only on M/s. Dell India Private Limited under the provisions of Rule 15(4) of the Cenvat Credit Rules read with Section 78 of the Finance Act, 1994 for the irregular service tax credits taken by them and 9.5 Further, taking recourse to Section 80 of the Finance Act, 1994, penalty was not imposed under the provisions of Section 78 of the Finance Act, 1994, for non-payment/short payme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y Thousand Nine Hundred and Ninety Two only) as common input tax credit from the details annexed to the rebate claims, ignoring the cenvat credit register produced along with the reply to show-cause notice, has led to erroneous conclusion. Further the show-cause notice proposed to disallow 95% of the cenvat credit on the allegation that trading is non-taxable/exempted service. However, in the impugned order learned Commissioner has altogether taken a different stand, travelling beyond the show-cause notice. 10.5 So far the finding in the impugned order as to 'invalid document', 40 invoices is concerned, it is urged that the appellant is assessed to service tax for last several years and the audit team of the Department have already conducted the audit in review and verified the accounts, and process being followed by appellant for availing the cenvat credit. The audit team did not report any material deviation as to details maintained by appellant. Further as regards discrepancies in the invoices in a few instances, the appellants have reversed the credit with interest, under intimation to the Department. In spite of requests made by the appellant to learned Commissioner to provid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... allowed unless such service is used exclusively in or in relation to the manufacture of exempted goods or providing exempted services." It can be seen from the reproduced provision that the said sub rule starts with a non-obstante clause which would mean that this sub-rule has to be read independently and it provides for availment of entire cenvat credit even if the same is used for manufacturing of dutiable and exempted goods and or providing taxable and exempted services. In my view, appellants have made out a case for availment of the entire cenvat credit of service tax paid on Management Consultancy Services as per the above reproduced sub-rule. To that extent the appeal filed by the appellant is allowed and the demands raised on this ground, the question of interest does not arise." 10.9. Learned counsel further states that on similar allegations for the period 2015-16, the show-cause notice was issued which have been adjudicated vide O-I-O No. 30/2018 dated 28/03/2018 wherein the learned Commissioner have dropped the proceedings following the ruling of this Tribunal in IBM India (Pvt.) Ltd. (supra). Particularly mentioning in para 25.5, that this order in IBM of this Tribu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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