9911796707
TMI Blog2022 (4) TMI 200X X X X Extracts X X X X X X X X Extracts X X X X ..... er was not produced but at the same time it has also been recorded that although both the register is produced but it is self attested and not attested by any Chartered Accountant therefore it cannot be looked into. At some place in the order of the lower authority it is also recorded that although the appellant has produced the register before them but since they failed to produce it at the time of investigations, therefore, it cannot be looked into during Adjudicating proceedings. According to me, the aforesaid view of the Adjudicating Authority is not correct. Not only that, the Adjudicating Authority also recorded the findings that the major portion of the demand is from September, 2004 to March, 2005 (it has been wrongly mentioned as M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ditional Director General, DGPM, WRV, Mumbai by which Learned Commissioner rejected the appeal filed by the appellant and upheld order of the Adjudicating Authority. 2. The issue involved in this appeal is as to whether appellants have utilized excess credit i.e. more than the limit prescribed under Rule 3(5) of Service Tax Credit Rules, 2002 (for the period April, 2004 to August, 2004) and Rule 6(3) of the Cenvat Credit Rules, 2004 during the period September, 2004 to September, 2007? 3. It is the case of Revenue that the Appellants are providing both taxable as well as exempted services. The exempted services are 'Renting of server room' and 'ISP to ISP interconnectivity'. During the course of audit it is noticed that the appellant insp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the department had given detailed description of both the services provided by them, therefore no suppression can be attributed to the appellants. Learned Counsel further submits that Rule 3(5) of Service Tax Credit Rule and Rule 6(3) CCR 2004 restricts the utilization of credit but does not render the credit inadmissible per se. In support of this submission learned Counsel placed reliance on the circular 137/72/2008-CX.4 dated 21/11/2008 and also on the decision of the Tribunal in the matter of DHL Logistics Private Limited v/s CCE, Thane-II reported in 2015(38) STR 620 (Tri-Mum) and submits that service tax paid by utilizing the credit in excess of the restriction prescribed under Rule 3(5) or Rule 6(3) cannot be demanded. Learned Coun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter before them but since they failed to produce it at the time of investigations, therefore, it cannot be looked into during Adjudicating proceedings. According to me, the aforesaid view of the Adjudicating Authority is not correct. Not only that, the Adjudicating Authority also recorded the findings that the major portion of the demand is from September, 2004 to March, 2005 (it has been wrongly mentioned as March, 2004 in the order) whereas the assessee has given copies of input tax register from April, 2005, which is completely wrong as the letter dated 17/02/2009 by the appellant to the department specifically mentioned about submission of copies of records maintained by them for the period June, 2003 to January, 2004 and April, 2004 to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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