Home Case Index All Cases Central Excise Central Excise + AT Central Excise - 2014 (7) TMI AT This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2014 (7) TMI 311 - CESTAT BANGALORECenvat Credit - Manufactures and clears Dutiable as well as Exempted goods - assessee does not avail credit on inputs, but avails credit on capital goods and input services; Commonly utilizes the input services for the manufacture and clearance of dutiable as well exempted goods. - Held that:- In fact, the Department could have demanded the amount payable as per Rule 6(3) of CCR. However, they have chosen to demand only proportionate credit. Therefore the consideration also is limited to the question as to when input service tax credit has been taken, provisions of Rule 6 regarding the availability of credit was attracted or not. Rule 6(1) clearly denies CENVAT credit in respect of exempted products. In the absence of any specific provisions, the appellant is bound to reverse the credit taken Credit can be taken only if separate accounts are maintained in the case of inputs or input services which are used for dutiable and exempted goods. In this case, appellant has taken CENVAT credit on input services and therefore they were bound by law to maintain separate account or not to avail credit. In the absence of maintenance of separate accounts, the credit on input services was clearly not eligible. In fact, the Department could have demanded the amount payable as per Rule 6(3) of CCR. However, they have chosen to demand only proportionate credit. Therefore the consideration also is limited to the question as to when input service tax credit has been taken, provisions of Rule 6 regarding the availability of credit was attracted or not. Rule 6(1) clearly denies CENVAT credit in respect of exempted products. In the absence of any specific provisions, the appellant is bound to reverse the credit taken. Rule 6(5) services - Held that:- At this stage, the learned counsel made another submission that there were services which are among the 17 services listed in Rule 6(5) and in respect of these services credit can be taken even if they are used in dutiable and exempted products. She submitted that the amount attributable to these services is ₹ 10, 361/-. - Contention of assessee is correct - therefore the payable amount to be demanded has to be reduced by this amount. Extended period of limitation - whether the similar matter was under consideration of the department earlier - Held that:- , the earlier proceedings was relating to the issue as to whether the appellant was eligible for exemption even when credit of input service tax had been taken or not. The issue was not whether the appellant is required to reverse proportionate credit when the services are used in dutiable and exempted products. Therefore the fact that there was an earlier proceedings would not be of any help. - the claim that there was no suppression or misdeclaration cannot be considered. - When the appellant did not reverse the proportionate credit or pay the amount as prescribed under Rule 6(3) or did not implement the option exercised by themselves, there is a clear misdeclaration or suppression on their part - Decided partly in favour of assessee.
|