TMI Blog2014 (4) TMI 300X X X X Extracts X X X X X X X X Extracts X X X X ..... ssed the facts. As regards miss-declaration, having regard to the size of the appellant and the fact that the appellant never took Cenvat credit of service tax attributable to GTA service for inward transportation of tubes and flaps (as stated by learned counsel in reply to query from the Bench), the fact that tubes and flaps were inserted into tyres and the weight of tubes and flaps compared to the weight of tyres is comparatively less, it cannot be said that there was miss-declaration with intention to evade duty - appellant is directed to proportionately reverse the Cenvat credit attributable to service tax paid on GTA service utilized in respect of tubes and flaps inserted into tyres in accordance with standard accounting principles wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the period from August 2006 to March 2011 in terms of Rule 6 (3) of Cenvat Credit Rules, 2004 with interest. Penalty equal to the duty demanded has also been imposed. 2. Learned counsel for the appellant submitted that trading activity cannot be considered as a service at all. For this purpose, he relied upon the decision of the Tribunal in the case of Orion Appliances Ltd. vs. Commissioner of Service Tax, Ahmedabad [2010 (19) S.T.R. 205 (Tri.-Ahmd.)]. He also submitted that trading can be never considered as an exempted service. For this purpose, he drew our attention to the definition of exempted services . During the relevant period, the exempted service means taxable service which are exempted from whole of the tax leviable thereo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant that the entire demand cannot be sustained, yet, we find that the decisions of the Tribunal in the case of Orion Appliances Ltd. (supra) and Metro Shoes Pvt. Ltd. (supra) took a view that proportionate credit attributable to trading arrived at in accordance with standard accounting principles is required to be reversed. After this was proposed by the Bench, learned counsel even though submitted that this was not the ground on which show-cause notice was issued, yet, agreed that in view of the decisions of the Tribunal, proportionate credit may be directed to be reversed without accepting that his stand is wrong. Further, he submitted that extended period could not have been invoked. This is because of the appellant has written a l ..... X X X X Extracts X X X X X X X X Extracts X X X X
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