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TMI Blog2021 (5) TMI 441X X X X Extracts X X X X X X X X Extracts X X X X ..... cating Authority/Commissioner (Appeals) by choosing such option in the show cause notice cannot be sustained. In the instant case also it is an undisputed fact that the appellant had reversed the entire amount of Cenvat credit as required under Rule 6(3)(ii) read with Rule 6(3A)(c) of the Cenvat Credit Rules - appeal allowed - decided in favor of appellant. - Excise Appeal No.76305 of 2018 - FINAL ORDER NO. 75247/2021 - Dated:- 12-5-2021 - SHRI P.K.CHOUDHARY, MEMBER (JUDICIAL) Dr.Samir Chakraborty, Senior Advocate Shri Abhijit Biswas, Advocate for the Appellant (s) Shri A.Roy, Authorized Representative for the Respondent (s) ORDER The present appeal is against the order dated 06.03.2018 passed by the Commissioner of Central Tax (Appeals), Kolkata rejecting the appeal filed by the appellant against the adjudication order dated 19.10.2012 passed by the Deputy Commissioner, Central Excise Service Tax, Durgapur-III Division and affirming the demand of an amount of ₹ 2,92,309/- against the appellant confirmed against the appellant, along with interest and imposing equal amount of penalty upon the appellant. 2. The facts in brief are: 2.1 At its ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Rule 6(3A) had not been followed. Therefore, the option exercised being incomplete, improper and not as per prescribed provisions, was unacceptable and the appellant was liable to pay the amount equal to 5% of the price/value of coke cleared, amounting to ₹ 2,92,309/-, in terms of Rule 6(3)(i) of the Cenvat Credit Rules along with interest under Rule 14 of the Cenvat Credit Rules, read with Sections 11A and 11AB respectively of the Central Excise Act and the appellant was liable to penalty under Rule 15 of the Cenvat Credit Rules read with Section 11AC of the said Act. 2.5 On reply being filed to the show cause notice on 13.01.2012, the adjudication order dated 19.10.2012 was passed, appeal filed against which by the appellant was rejected and the adjudication order was upheld by the impugned order of the Commissioner (Appeals). 3. I have heard Dr. Samir Chakraborty, Senior Advocate, on behalf of the appellant and Shri A. Roy, learned Authorized Representative for the Department and have perused carefully the documents on record. 4. It has been contended by Dr. Chakraborty on behalf of the appellant as follows: (a) The option under Rule 6(3) is required to be e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alments between August 2010 and March 2011. Such procedural error in making payment of provisional amounts, when the amount payable was to be finally determined at the end of the financial year and differential amount paid by the end of June of the succeeding financial year as per statutory provision itself, which was undisputedly done in the instant case, cannot and does not lead to the conclusion that the option exercised under Rule 6(3)(ii) becomes non-est in the eye of law or is not effective or cannot be considered as a valid option exercised by the assessee. There is also no such provision in Rule 6 of the Cenvat Credit Rules, including sub-rules (3) and (3A) thereof. The contrary findings are therefore without any statutory support and devoid of merit. Reliance has been placed in support upon the following decisions: (i) Etrans Solutions Pvt. Ltd. Vs. Commr. of CGST C.Ex., 2020 (372) ELT 867 (T-Kol) (ii) Mercedes Benz India (P) Ltd. Vs. Commissioner of C.Ex., 2015 (40) STR 381 (T) (iii) Aster Pvt. Ltd. Vs. Commissioner of Customs C.Ex., 2016 (43) STR 411 (T). (e) The Commissioner (Appeals) has erred in holding that the provision of Rule 6(3)(i) of the C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cause notice cannot be sustained. 6.1 Further, in the case of Etrans Solutions Pvt. Ltd. Vs. Commr. of CGST C.Ex. (supra), this Bench of the Tribunal, in a similar case, held as under: 10. In the present case, it is an admitted fact that the appellant did not maintain separate accounts for the input services used in or in relation to the provision of taxable service as well as exempt service i.e. trading of goods. Therefore, two options were available to them, i.e., either to pay 6% of value of the exempted service or pay an amount equal to the credit attributable to the input services used in or in relation to exempt services subject to the provisions of Sub-rule (3A). When the mistake was pointed out, the appellant reversed the proportionate common credit taken on input services used in the provision of exempt services (trading of goods) along with interest thereon. Therefore, Rule 6(3) (i) will not have any application, when a credit is taken wrongly and the same is reversed along with interest as it tantamounts to not taking of the credit at all. I find that the Tribunal in the case of M/s Mercedes Benz India (P) Limited Vs. Commissioner of Central Excise, Pune-I ..... X X X X Extracts X X X X X X X X Extracts X X X X
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