TMI Blog2014 (9) TMI 648X X X X Extracts X X X X X X X X Extracts X X X X ..... by utilizing the credit comes to ₹ 4,94,494.00. This is actually equal to 35% of their liability from May 2003 to March 2004. There is no rule which says that the credit accumulated during the month should be used in the same month. In fact no time frame has been fixed in the rules. In these circumstances, the utilization of credit to the extent of ₹ 4,94,494/- during December 2003, January 2004, February 2004 and March 2004 is in order and in consonance with Rule 3(5) of the Cenvat Credit Rules, 2002. - demand set aside - decided in favor of assessee. - ST/22189/2014-DB - Final Order No..21621/2014 - Dated:- 1-9-2014 - SHRI B.S.V.MURTHY AND SHRI S.K. MOHANTY, JJ. For the Appellant : Ms. Aparna Rao, Advocate For the Respondent : Dr. A.K. Nigam, Addl. Commissioner(AR) JUDGEMENT Per : B.S.V.MURTHY; Learned counsel submits that there is a delay of 13 days in filing the appeal. She submits that this happened because the authorized signatory was hospitalized from 09/06/2014. Ongoing through the records, we find that impugned order was received by the appellant on 19/03/2014 and appeal was to be filed on 18/06/2014 whereas the authorized signato ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndle messages, secretarial services, internet and telecom facilities, pantry and security; 4. In this case, it is not known to whom the service is provided since the customers of the hotel used the facility. It is not known for what purpose the business center was used. In the absence of any knowledge as to what are the purposes for which the service was used, how one can reach a conclusion that the service received by the customers of the appellant could be one of the various services listed under support service of business or commerce is difficult to imagine. Basically the responsibility to show that that a taxable event has occurred and service is leviable to tax is required to be proved by the Revenue. In this case obviously it is an assumption on the part of the Revenue that taking print out, photocopying and use of computer fall under the category of BSS. 5. During November 2006, the appellant had paid the service tax liability by debiting their account in excess of 20% which according to Revenue resulted in violation of ₹ 6(3) of CENVAT Credit Rules 2004 since the appellants did not maintain separate accounts of inputs/input service in respect of exempted and ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vant paragraphs are reproduced below:- 4.2 The Appellant have pleaded that if the 20% ceiling on utilization is applied only to credit of services other than the services covered by Rule 6(5) and credit of inputs goods other than capital goods, utilization of credit for payment of service tax, in excess of the ceiling has taken place only in January 2005, March 2005 and May 2005 and this excess utilized credit cannot be demanded as Rule 6(3)(c) is silent with regard to the period during which the 20% credit shall be utilized and in this regard reliance has been placed on Tribunals judgment in case of Vijayanand Roadlines Ltd. v. CCE, Belgaum reported in 2007 (7) 219 (Tri.-Bang.), wherein the Tribunal with reference to Rule 3(5) of the Service Tax Credit Rules, 2002, which is pari materia with Rule 6(3)(c) of the Cenvat Credit Rules, 2004, has held that the utilization is not restricted to monthly or quarterly basis and that it can be utilized at any time. We agree with this plea. In the case of Vijayanand Roadlines Ltd. (supra) the Appellant during June 2003 to December 2003 period, as against service tax credit utilization quota of 35% of the total service tax payab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in cases of CCE v. Chemphar Drugs Liniments reported in 1989 (40) 276 (S.C.) and Pushpam Pharmaceuticals Company v. CCE, Mumbai reported in 1995 (78) 401 (S.C.) has held that something positive, rather than mere inaction or failure on the part of an assessee has to be proved before invoking extended limitation period under proviso to Section 11A(1) of the Central Excise Act, 1944 and that since the expression Suppression of facts has been used in the company of strong words such as fraud, collusion in wilful default, it cannot be interpreted or mere omission - the act constituting suppression must be deliberate. In this case neither the circumstances indicate suppression of facts , misstatement, fraud etc. nor any evidence in this regard has been produced. Therefore neither the demand beyond the normal limitation period of one year is sustainable nor penalty under Rule 15(4) of Cenvat Credit Rules, 2004 read with Section 78 of the Finance Act, 1994 is attracted. 6. In view of the above discussion, we hold that while the provisions of Rule 6(3)(c) of the Cenvat Credit Rules, 2004 are attracted and wrongly utilized credit, if any, is recoverable with interest, the demands ..... X X X X Extracts X X X X X X X X Extracts X X X X
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