9911796707
TMI Blog2023 (5) TMI 1081X X X X Extracts X X X X X X X X Extracts X X X X ..... to service tax. On scrutiny of the ST-3 returns submitted by the appellant, it appeared to the Department that the appellant was providing taxable as well as exempted services; they have not maintained separate records showing the credit utilized in exempted as well as dutiable services in contravention of Rule 6 (3) of Cenvat Credit Rules, 2004 [CCR]; they have failed to pay an amount equal to 6% of value of the exempted services for the period April 2008 to September 2008 and April 2009 to September 2009. Accordingly show cause notices [SCNs] dated 22.10.2009 and 22.10.2010 were issued to the appellant seeking recovery of service tax of Rs. 1,32,72,624/- and Rs 6,24,35,382/- respectively. Commissioner (Adjudication), Service Tax, New Del ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment of service tax under composition scheme; under the scheme the appellant is eligible to take Cenvat credit on input services and capital goods. He submits further that the appellant has produced a certificate issued by Chartered Accountant in respect of the issues raised in the impugned SCNs. Adjudicating authority has passed the impugned order in a casual manner without considering the facts of the case, submissions of the appellants and the Chartered Accountant's Certificate. He submits that the Commissioner had totally misread the provision of Rule 2 (e) of CCR, which had no mention of partially exempted services; it is only by virtue of Notification No. 28/2012-CE (NT) dated 01.07.2002 concept of partial exemption of value in respec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... averments vide letter dated 14.02.2011 was incorrect and the mistake was due to a clerical error; the claim of the appellant that they have not taken any credit of inputs, input services or capital goods for the sites in respect of which exemption under Notification No. 1/2006-ST has been claimed, is incorrect; contrary to the appellant's claim that they have not received any amount towards exempted services, other than export, under the category of ICCS and RCCS; ST-3 returns for April - September 2008 show that they have received abated value for ICCS and RCCS and exempted value of WCS; the appellant has not filed any such bills of Cenvat credit to enable to ascertain whether or not they have been providing taxable or non-taxable service ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s income under exempted services. It is not the case of the appellant that he has not provided any exempted services. 8. The appellant argued that the impugned order was passed in a casual manner without going through the provisions of the rules; the Commissioner has committed a legal infirmity by invoking the concept of partial exemption, which was not prevalent during the relevant time. We find that as claimed by the appellant Rule 2 (e) of CCR in the relevant periods reads as: "exempted services means taxable services which are exempt from whole of the service tax leviable thereon and include services on which no service tax is leviable under Section 66 of the Finance Act, 1994"; 9. We find that the concept of partial exempted servic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for availment of Cenvat credit on input services. The bar was only on inputs. Moreover Adjudicating authority erred in holding that the appellant has availed simultaneous benefit of abatement and of Cenvat credit. The appellant submitted that the condition of non-availment of Cenvat credit has been fulfilled in respect of Construction Services and only in respect of Works Contract Service, where there is no express bar on the availment of Cenvat credit on input services, they have availed such credit. To this extent, we find that the appellant's contention is acceptable. We find that neither the SCN nor the impugned order identify the specific import services availed both for dutiable and exempted services; they do not qualify the credit a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat it is not correct on the part of the Adjudicating authority to pass an order without going through the contents of the said Chartered Accountant certificate; without causing reasonable verification of the same and without negating in the same with cogent evidence and reasons. We find that the Courts and the Tribunal have time and again held that a certificate issued by a professional cannot be dis-regarded or over-looked without adducing cogent evidence to prove that the said certificate is incorrect. We find that Tribunal in the case of Monarch Pipes Ltd. versus Commissioner of Central Excise, Tirupati [2010 (262) E.L.T. 406 (Tri. - Bang.)] observed that : "4.2 We fail to understand how the Adjudicating Authority could have recorded ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
