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2020 (10) TMI 580 - AT - Service TaxCENVAT Credit - non-reversal of proportionate credit availed on ‘input services’ that was attributable, mathematically, to rendering of services by the appellant on which tax liability was not required to be discharged - endowment policy and unit linked insurance plan (ULIP) policy - period between 2008-09 to 2010-11 - HELD THAT:- Considering that it has been held in INDIAN NATIONAL SHIPOWNERS' ASSOCIATION VERSUS UNION OF INDIA [2009 (3) TMI 29 - BOMBAY HIGH COURT] by the Hon’ble High Court of Bombay, and duly affirmed by the Hon’ble Supreme Court in UOI VERSUS INDIAN NATIONAL SHIPOWNERS ASS. & ORS. [2010 (12) TMI 12 - SUPREME COURT], that no taxable service can, by inference, be presumed to exist until specifically enumerated in section 65 (105) of Finance Act, 1994, this proposition advanced by, and on behalf of, the adjudicating authority fails the test of judicial confirmation. Consequently, the inference that the service described in section 65 (105) (zx) of Finance Act, 1994 is a bundle from which one has been isolated for tax till 1st May 2011 is also not tenable; this should have been amply evident from the absence of a new entry to describe such service identified for levy of tax. Neither does the tax on ‘management of segregated fund’ in section 65 (105) (zzzzf) of Finance Act, 1994 with effect from 16th May 2008 obtain support for it as this freshly incorporated taxable service is a fiction designed by law through a deeming provision. Hence, it is abundantly clear that the expansion of the taxable value through the two amendments supra did not bring new services into existence. Even if it did, the subsequent existence of such service could not enable assumption that these were exempted till then. From application of the definition of ‘exempted services’ in rule 2 (e) of CENVAT Credit Rules, 2004, to the facts leading to the impugned order, there are no doubt that the amendments in section 65 (105) of Finance Act, 1994 in relation to ‘endowment policies’ and ‘unit linked insurance plan (ULIP) policies’ cannot be held to have established ‘exempted services’ warranting any restriction on availment of CENVAT credit of ‘input services’ as provided for in the rule 6 of CENVAT Credit Rules, 2004. Appeal allowed - decided in favor of appellant.
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