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TMI Blog2022 (8) TMI 1153X X X X Extracts X X X X X X X X Extracts X X X X ..... the manufacture of job work goods under Notification No. 214/86-CE, the credit is admissible. In view of basis explicit provision credit of input or input service used in relation to job work goods cannot be denied - the demand related to manufacture of job work goods is clearly not sustainable. Trading of Goods on High Seas Basis - time limitation - suppression of facts or not - HELD THAT:- This issue has been raised by the auditors and auditors accepting that the proportionate credit in respect of common input service attributed to Trading of Goods on High Seas Basis should be reversed and the appellant complying with the direction of CERA Audit, they have reversed the proportionate credit of Rs. 5,857/-. In this peculiar fact no fu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the officers of the CERA, Ahmedabad it was observed that the appellant is engaged in the activity of manufacture of its own, manufacture on job work basis, clearance of inputs in as such condition and trading of goods on High Seas Basis. Department s contention is that all the said three activities falls under the category of exempted service. Hence, the appellant are required to pay an amount of 7% in terms of Rules 6 of Cenvat Credit Rules, 2004, on the ground that the appellant is using common input service attributed to all the activities. The Adjudicating Authority confirmed demand and the Learned Commissioner (Appeals) has upheld the same vide the impugned order. Therefore, the appellant filed the present appeal. 2. Shri Paresh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9-240-ELT-135-Trib-Mum Bharat Aluminium Co. ltd.-2016-344-ELT-1153-Chattisgarh-HC Compark Services P Ltd.- 2019-24-G.S.T.L- Tri-All. As regard the demand in respect of removal of input as such. He submits that since the input was cleared as such on payment of duty, it cannot be said that the Trading of said input is exempted activity. Therefore, Rule 6 of Cenvat Credit Rules would not be applicable. He placed reliance on this CESTAT decision in the case of Mahesh Twisto Tech Ltd. Final Order No. A/13504/2017 dated 17.11.2017. 3. Shri R P Parekh, Learned Superintendent (Authorized Representative) appearing on behalf of the Revenue reiterates the finding of the impugned order. 4. I have carefully considered the submissions ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it, they have reversed the proportionate credit of Rs. 5,857/-. In this peculiar fact no further demand invoking Rule 6 can be raised. Moreover, the activity of Trading of Goods on High Seas Basis was clearly in the knowledge of the department. Therefore, no suppression of fact can be alleged against the appellant. Hence, the demand is also not sustainable on the ground of time bar. The appellant have relied upon the decision in the case of Optel Ceramic Pvt. Ltd. (supra) wherein this Tribunal has passed the following order: Heard both sides. This appeal is filed by the Revenue against the Order-in-Appeal No. 248-COMMR (A)/2014-15 dated 31.12.2014 passed by the Commissioner (Appeals), Central Excise, Rajkot, whereunder the ld. Commissi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y in terms of Rule 3(5) of Cenvat Credit Rules, 2004. As per this provision for all the purposes the removal of goods is treated as removal of goods of payment of duty. In this clear position by any stretch of imagination, it cannot be said that the goods cleared on payment duty is exempted goods or service. Therefore, there is no application of Rule 6(3) for payment of an amount as prescribed therein. This issue was considered by this Tribunal in the case of Mahesh Twisto Tech Ltd (supra), wherein following order was passed by the Tribunal: Heard both sides. This Appeal is filed against the Order-In Appeal No. BHV-EXCUS-000-APP-028-2017-18 deted 4.9.2017 passed by the Commissioner (Appeals), Central GST and Excise, Rajkot. 2. Bri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1 (Tri-All.). 4. Ld. A.R. for the Revenue reiterated the finding of the Ld Commissioner (Appeals). 5. I find that the ld. Commissioner (Appeals) has remanded the matter to re-compute the amount of 6% under Rule 6(3) of CCR, 2004 after excluding the export sales. It is the grievance of the Appellant that the clearance of inputs as such under Rule 3(5) of the CCR, 2004 was not excluded by the ld Commissioner (Appeals) even though they argued the same before him. I find that in view of the judgments of this Tribunal in the case of UP Telelinks (supra) and Mahaveer Cylinders Ltd. (supra), the value of as such clearances of inputs cannot be taken into account in computing 6% of the value of exempted goods i.e. the goods traded by the A ..... X X X X Extracts X X X X X X X X Extracts X X X X
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