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2018 (11) TMI 841 - AT - Service TaxCENVAT Credit - common input services against trading of goods on high sea without bifurcation of inputs on common input services for dutiable and exempted goods - Rule 6(3)(i) of CCR - Held that:- It is apparently clear that a pure sale, unassociated with delivery of goods and services together, is not to be considered as service. Therefore what is contained in Section 66D of the Finance Act, 1994 dealing with negative list of services concerning trading of goods and the clarificatory circular referred above as well as inclusion of the same in the explanation appended to clause 2(e) of the Cenvat Credit Rules 2004 are mere clarificatory in nature since definition of service as contained in 65B(44) and exempted service in 66D are to be read conjointly and not in exclusion of each other. This being the statutory definition sale of goods, be it made in the high sea or within territorial boundary of India in which Finance Act, 1994 has its force, cannot be called a service to impose tax liability or deny the credit under Rule 6 of Cenvat Credit Rules. The language imported in Rule 6(3AA) is therefore very clear and unambiguous that at the time of adjudication such option can be permitted to the assessee to be exercised in respect of the duty liability and interest to be calculated per annum from the due date for payment of amount for each of those months. Further, Rule 6(3AB) provides that the assessee has the option to pay an amount under clause (iii) of sub-rule (3) in the financial year 2015-16 and the provisions shall be deemed to be in existence till 30.06.2016 which indicates its retrospectivity. The order passed by the Commissioner (Appeals) confirming the duty demand along with interest and penalty is set aside - appeal allowed - decided in favor of appellant.
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