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TMI Blog2024 (5) TMI 1389X X X X Extracts X X X X X X X X Extracts X X X X ..... he main objective of the Rule 6 is to ensure that the assessee should not avail the Cenvat Credit in respect of input or input services which are used in or in relation to the manufacture of the exempted goods or for exempted services. If this is the objective then at the most amount which is to be recovered shall not be in any case more than Cenvat Credit attributed to the input or input services used in the exempted goods. ' There is no merit in the impugned order which is set aside - Appeal of assessee allowed. - MR C J MATHEW, MEMBER (TECHNICAL) AND MR AJAY SHARMA, MEMBER (JUDICIAL) Shri Abhishek Deodhar, Advocate for the appellant Shri Amrendra Kumar Jha, Deputy Commissioner (AR) for the respondent ORDER The limited issue in this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Mercedes Benz India (P) Ltd v. Commissioner of Central Excise, Pune-I [2015-TIOL-1550-CESTAT-MUM], in Cranes Structural Engineers v. Commissioner of Central Excise, Bangalore-I [2017 (347) ELT 112 (Tri.-Bang.)], in Hamdard (Wakf) Laboratories v. Commissioner of Customs, Central Excise Service Tax, Ghaziabad [(2023) 4 Centax 62 (Tri.-All)] and in Star Agriwarehousing Collateral Management Ltd v. Commissioner of Central Excise Service Tax, Jaipur [2021 (44) GSTL 271 (Tri. - Del.)]. 4. According to Learned Authorized Representative, the appellant had not reversed the credit proportionately attributable to clearance of 27923531 kgs of medical grade oxygen valued at ₹ 17.26 crores. It is also contended that the appellant had not maintained ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith this act of the appellant, it is clear that the appellant opted for the option as provided under Rule 6(3)(ii) of the Cenvat Credit Rules, 2012, in accordance to which, the appellant are supposed to an amount equivalent to Cenvat Credit on input services attributed to the exempted service in terms of Rule 6(3A). In the present case, the appellant has availed Cenvat Credit in respect of common input services, which has been used in relation to the manufacture of the final product as well as for trading of bought out cars. Therefore they are supposed to pay an amount equivalent to Cenvat Credit which is attributed to the input service used for exempted service i.e. sale of car. In our view, three options have been provided under rule 6(3) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his clause is exeertised or proposed to be exercised; (iii) Description of dutiable goods or taxable services; (iv) Description of exempted goods or exempted services; (v) Cenvat credit of inputs and input services lying in balance as on the date of exercising the option under this condition. As per the submission of the appellant and perusal of their letter alongwith enclosed details, it is found that more or less all these particulars were intimated to the Jurisdictional Superintendent. The appellant has been filing their returns regularly on monthly basis to the department. On perusal of the copies of the such return submitted alongwith appeal papers, it is observed that the particulars, as required under clause (a) of sub rule (3A) of R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by the Ld. Sr. Counsel is that option of right of choosing, something that maybe or is chosen, choice, the act of choosing . From the said meaning of the term option', it is clear that it, is the appellant who have liberty to decide which option to be exercised and not the Revenue to decide the same. 5.4 We find that the appellant admittedly paid an amount of Rs.4,06,785/- plus interest, this is not under dispute. Therefore in our view, the appellant have complied with the condition prescribed under Rule 6(3)(ii) read with sub rule (3A) of Rule 6 of Cenvat Credit Rules, therefore demand of huge amount of Rs.24,71,93,529/- of the total value of the vehicle amounting to Rs.494,38,70,577/- sold in the market cannot be demanded. We are a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ption in writing then the appellant is bound to pay the duty amount calculating under the first option. According to me, this argument is devoid of merit, because the said Rule does not say anywhere that on failure to intimate, the manufacturer/service provider would lose his right to avail second option of reversing the proportionate credit. Sub-rule (3A) of Rule 6 is only a procedure contemplated for application of Rule 6(3). Consequently, the argument of Revenue is that the appellants exercising option is mandatory and on its failure, the appellant has no other option but to accept and apply Rule 6(3)(i) and make payment of 5%/10% of the sale price of the exempted goods or exempted services is not acceptable, because the Rule does not la ..... X X X X Extracts X X X X X X X X Extracts X X X X
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