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2014 (10) TMI 773 - AT - Service TaxIrregular availment of CENVAT credit - Banking and Other Financial Services - restriction on utilization of 20% of service tax - Held that:- As regards demand on the ground that the appellants had utilized more than 20% of the service tax payable from CENVAT Credit account, the appellants have produced a Chartered Accountant certificate which shows the details of payments, credit, etc. It is the submission of the learned CA that in the case of Idea Cellular Ltd. [2009 (2) TMI 91 - CESTAT NEW DELHI], the Tribunal had taken a view that the restriction of 20% limit has to be calculated excluding the services which are specified in Rule 6(5) of CENVAT Credit Rules, 2004. - However while calculating, the calculation was made in a different manner which resulted in the conclusion that appellants had utilized more than 20% of CENVAT credit. Two periods were examined by us and in both the cases, we found that the amount of credit utilized by the appellants come to exactly 20%, if the claim of the appellant for method of calculation is accepted. Appellants did not make a clear claim that they had selected invoices randomly and on the basis of these certificates, all the credit taken in respect of common input services have to be treated as correct and the invoices have to be considered as ones relating to services classifiable under services listed in Rule 6(5) of CENVAT Credit Rules, 2004. In such a situation, the observation of the Commissioner that the appellants are eligible only to this extent cannot be faulted with. At the same time, we also have to take note of the fact that the audit observation was based on 1% of the samples and there is no clear finding that these are not common input services. Instead it appears that Department is attempting reclassification of the input services to arrive at this conclusion. - Matter remanded back - Decided in favour of assessee.
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