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TMI Blog2013 (11) TMI 1456X X X X Extracts X X X X X X X X Extracts X X X X ..... 30/2004-CE & 29/2004-CE both dt. 09/07/2004. It was the claim of the appellant before first Appellate Authority that they are availing benefit of both the Notifications No. 30/2004-CE dated 09.07.2004 and 29/2004-CE dated 09.07.2004 and that they have rightly utilised accumulated cenvat credit lying with the appellant while discharging service tax liability under business auxiliary services. The first Appellate Authority rejected the claim of the appellant on the grounds that appellants were availing the benefit of full exemption under Notification No. 30/2004-CE dated 09.07.2004, therefore, the entire accumulated credit lying unutilised on 01.07.2007 stand lapsed and cannot be utilised for discharging service tax liability on the other se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ol Engineers Pvt. Ltd. [2009 (239) E.L.T. 334 (Tri.-Ahmd.)] (vi) S.S. Engineers Vs. Commissioner of Central Excise, Pune-I Order No. A/762/13/EB/C-II 3. Sh. K.J. Kinariwalla (A.R.) appearing on behalf of the revenue argued that appellant has clearly stated in para 5 of their letter written to Range Superintendent that w.e.f. 01.07.2007 appellant started availing full exemption under Notification No. 30/2004-CE dated 09.07.2004 and, therefore, the entire credit of inputs lying unutilised with the appellant on 01.07.2007 shall stand lapsed and cannot be utilised for discharging service tax liability to be paid by the appellant. 4. Heard both sides and perused the case records. 5. The issue involved in the present appeal is whether the app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ster Texturised Yarn on payment of duty under Not. No. 29/2004-CE dt. 09/07/2004, which please note. 8- Further all the present records maintain by us for dutiable scheme shall be continued to be maintained by us under exemption scheme with clearance under excise invoice on exempted goods and we will also maintain separate records for clearance of Polyester Texturised Yarn on payment of Central Excise Duty under No. No. 29/2004-CE dt. 09/07/2004, simultaneously. 5.1 It is evident from the above intimation given to the Revenue that appellant in para-5 has given a statement that they are switching over to dutiable scheme of Notification No. 29/2004-CE dated 09.07.2004 to full exem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... service tax payment on business auxiliary services are undertaken simultaneously, then the credit lying in the admissible cenvat credit account can be used for debiting either payment of Central Excise duty or for discharging service tax liability. There is no bar under the Cenvat Credit Rules, 2004 that cenvat credit earned on capital goods/inputs used in the manufacture of dutiable furnished goods cannot be used for discharging service tax liability on services provided by the same appellant. Appellant has correctly relied upon the judgment of CESTAT, Mumbai Bench in the case of S.S. Engineers Vs. CCE Order No. A/762/13/EB/C-II, dated 19.08.13 that payment of excise duty or service tax is permissible from the cenvat credit and the appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ustoms Tariff Act, shall be utilized for payment of service tax on any output service. Similar restriction are in other proviso. We also note that there are certain restrictions on the utilization of particular type of duties which are elaborated in sub-rule (b) of Rule 7 of the Cenvat Credit Rules. These restrictions do not cover cross utilization of credit of excise and service tax, as a general proposition. 6- We have also gone through the various case law quoted by the learned counsel for the appellant and we note that in the case of CCE, Pune vs Lakshmi Technology and Engineering Industries Ltd (supra) in para 6 has observed us under:- 6. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 37 of the Central Excise Act, 1944 and Section 94 of the Finance Act, 1994. Rule 3(1) enables a 'manufacturer' or a 'provider of taxable service' to take credit of specified duties and utilize them to discharge duty liability under Rule 3(4) of the CENVAT Credit Rules. A credit can be utilized for payment of any duty of excise on any final product or for payment of service tax on any output service. The respondent is undisputedly registered as a service provider for providing the services of renting of immovable property. The credit taken by them as manufacturer/service provider has been used both for paying excise duty and for paying service tax. The rules permit taking of credit under a common pool and permit use of the credit from the co ..... X X X X Extracts X X X X X X X X Extracts X X X X
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