TMI Blog2013 (9) TMI 292X X X X Extracts X X X X X X X X Extracts X X X X ..... would not lapse and Rule 6 (3) does not bar utilisation of accumulated credit and therefore, the department should not deny utilisation of the accumulated credit by the assessee after 01/04/2008 – Waiver of Pre-Deposit - The appellant had made out a strong prima facie case for grant of stay - unconditional waiver from pre-deposit of dues was allowed and stay granted during the pendency of the appeal – Decided in favour of Assesse. - ST/86814/13 - Stay Order No. S/998/2013-WZB/C-I(CSTB) - Dated:- 25-6-2013 - P.R. Chandrasekharan, J. For the Appellant : S.S. Gupta, CA For the Respondent : Shobha Ram, Comm. (AR) The appeal and stay application are directed against order-in-original No. 16/ANS-16/Spice/Th-I/2012 dated 29/01 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion operators which were commonly known as "Inter Connectivity usage service" for which they were receiving consideration. However, since the other telephone operators were not the subscribers of the appellant, there was no service tax liability. As per Cenvat Credit Rules as they stood at the relevant time, under Rule 6 (3) (c), in a situation where the output service provider rendered taxable as well as exempted service and did not maintain separate account of the input services utilised, there was a restriction on availment of Cenvat Credit to the extent of 20% of the amount of service tax payable on taxable out put service. Therefore, the appellant was not able to utilize 80% of the input service tax credit prior to 01/06.2007. Consequ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... b-rule, he shall exercise such option for all exempted goods manufactured by him or, as the case may be, all exempted services provided by him, and such option shall not be withdrawn during the remaining part of the financial year. Explanation II:- For removal of doubt, it is hereby clarified that the credit shall not be allowed on inputs used exclusively in or in relation to the manufacture of exempted goods or for provision of exempted services and on input services used exclusively in or in relation to the manufacture of exempted goods and their clearance upto the place of removal or for provision of exempted services. 3.2 Subsequent to this, a question arose whether credit accumulated prior to 01/04/2008 would lapse or not and th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (i) Option No.2:- He may pay an amount equivalent to CENVAT Credit attributable to inputs and input services attributable to exempted goods and non-taxable/exempted services. As stated earlier, many taxpayers had accumulated CENVAT credit balance as on 01.04.2008. The matter to be considered was whether this credit balance should be allowed to be utilized for payment of service tax after 01.04.2008. As no lapsing provision was incorporated and that the existing Rule 6(3) of the CENVAT Credit Rules does not explicitly bar the utilization of the accumulated credit, the department should not deny the utilization of such accumulated CENVAT credit by the taxpayer after 01/04/2008. Further, it must be kept in mind that taking of credi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. Gujarat Narmada Fertilizers Co. Ltd. 2009 (240) ELT 661 (SC), the said decision pertains to Rule 57AD of the erstwhile Central Excise Rules, 1944, wherein it was provided that Cenvat Credit on inputs intended to be used as fuel was not permissible. In that context, since there was a specific exclusion of fuel for the purpose of input credit the denial of Cenvat Credit on fuel was held sustainable in law by the Hon'ble apex Court. In the case before us, there is no specific exclusion of any inputs/input services under Rule 6(3) or under Rule (3) of the Cenvat Credit Rules. In view of the above, the adjudicating authority has proceeded on a wrong footing and has denied the Cenvat Credit. Accordingly he prays for grant of stay. 4. The Ld. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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