Home Case Index All Cases Service Tax Service Tax + AT Service Tax - 2022 (6) TMI AT This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2022 (6) TMI 468 - CESTAT MUMBAICENVAT Credit - Common input services used in manufacture of both taxable as well as exempt goods - non-maintenance of separate records - rule 6(3A) of CENVAT Credit Rules, 2004 - HELD THAT:- It is admitted in the orders of the lower authorities that, while letter DOF no. 334/8/2016-TRU dated 29th February 2016 of Ministry of Finance elaborating upon the amendment in rule 6 of CENVAT Credit Rules, 2004 may favour the appellant herein, the prospective intent of amendment in rule 6 of CENVAT Credit Rules, 2004 precludes such shelter for the period of dispute in this appeal. Furthermore, and strangely so after noting that the two orders relied upon in submissions were interim in nature, the original authority considered the decision in THYSSENKRUPP INDUSTRIES (I) PVT LTD VERSUS COMMISSIONER OF CENTRAL EXCISE, PUNE [2014 (10) TMI 476 - CESTAT MUMBAI] to be worthy of emulation. It does not seem to have occurred to the lower authorities that disposal of application for stay of recovery pending decision on the appeal did not warrant anything other than a preliminary survey of the law and, thereby, depriving it of status as binding precedent. CENVAT credit scheme is operated through the self-contained CENVAT Credit Rules, 2004 and its essence is availment and utilization in self-maintained records that, once reported in periodical returns, becomes irretractable except by revision in subsequent return. The filtration for availment is conformity with rule 3 of CENVAT Credit Rules, 2004 and utilization is governed by rule 4 of CENVAT Credit Rules, 2004. Recovery of ineligible credit is enabled through rule 14 of CENVAT Credit Rules, 2004. Rule 6 of CENVAT Credit Rules, 2004 is not, by any stretch, a substitute for either rule 3 or rule 14 of CENVAT Credit Rules, 2004 - it is clear that the signification of the formula for apportionment of credit relates to such credit as is not amenable to attribution according to the taxability, or otherwise, of goods manufactured or service rendered. Impliedly, such impediment arises from impossibility of recording, or unwillingness to maintain, separate account of deployment. The sole change brought about by the amendment of 2016 has, all the same, to do with the extent of detailing in the records of utilization of ‘input’/’input service’ which was not explicitly articulated till then but, nonetheless, implicit. Total CENVAT credit is total to the extent that such credit has remained unattributed in the accounts to taxable goods or services. This dispute over the formula in rule 6(3A) of CENVAT Credit Rules, 2004 arose in consequence of exercise of that option, from among those in rule 6(3) of CENVAT Credit Rules, 2004, for neutralization of credit that, in conformity with the injunction in rule 6(1) of CENVAT Credit Rules, 2004, could not be continued and the obvious disinclination to resort to the mandate of rule 6(2) of CENVAT Credit Rules, 2004. The non obstante qualification of rule 6(3) of CENVAT Credit Rules, 2004 accords regularity to other modes of neutralization that, at best, are approximations of attribution. The impugned order is set aside and the re-computation restored to the original authority before whom the accountal of credit taken on ‘input service’ shall be furnished by the appellant herein and to which the ratio in the formula is to be applied - Appeal disposed off by this specific remand.
|