9911796707
TMI Blog2015 (3) TMI 89X X X X Extracts X X X X X X X X Extracts X X X X ..... at credit of Rs. 7,01,979/- on certain ineligible input services as well as utilised excess credit of Rs. 6,78,459/- on common input services used for both trading as well as taxable service. On being pointed out the respondents paid the entire amount along with interest and subsequently filed refund claim. The appellants also had taken credit of Rs. 6,78,459/- paid by them in their cenvat credit account. The adjudicating authority has issued a show cause notice dt. 3.3.2009 for rejection of the claim. Vide OIO No.33/2009 dt. 29.4.2009, the adjudicating authority has rejected the refund claim under the provisions of Rule 6 (3) (c) and Rule 2(1) of Cenvat Credit Rules, 2004. On appeal filed by the respondents, the Commissioner (Appeals), has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. - 2009 (15) STR 107 (Tri.-Kol.) (ii) Lacto Cosmetics (Vapi) Pvt. Ltd. Vs CCE Daman 2013 (30) STR 107 (iii) CCE Ahmedabad Vs Cadila Healthcare Ltd. 2013 (30) STR 3 (Guj.) 5. Heard both sides and perused the records. 6. As regards the preliminary objection raised by consultant on the authorisation to file appeal by the Committee of Commissioners, I do not find any infirmity as the Committee of Commissioners have clearly brought out the grounds. As regards the time-bar issue raised by the consultant, I find that Revenue has filed appeal on 15.2.2010, the impugned order was dated 9.11.2009 and the date of communication was 16.11.2009. Therefore, the appeal has been filed within 3 months from the date of receipt of the order. The prelimin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vices of officer vehicles 3. Insurance on vehicles. 4. Fire Insurance for storage of vehicles 5. Testing & analysis charges on sample like Iron ore, sold by them. 6. Project feasibility charges for production of steel billets. 7. Clearing and forwarding agent charges for clearing of goods purchased by them. 9. Respondents are registered under Business Auxiliary Service and also discharging service tax for rendering output service under BAS. The LAA in the impugned order has discussed the issue in detail and relied Tribunal decision while allowing the credit as the above services are used in relation to output service rendered by the respondent. The Hon'ble High Court of Gujarat in the case of CCE Vs Cadila Healthcare Ltd. (supra) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not have retrospective effect. The next issue to be decided is how to apportion the credit of input service taken by the appellant, where such input services have been used both in the manufactured goods and trading activities of the imported goods. It is in this context that the ld. Sr. Advocate for appellant has argued that the same should be computed with reference to clause (c) of Explanation I appended after Rule 6(3D) of Cenvat Credit Rules, 2004. The said provision as noted earlier was inserted with effect from 1-4-2011. The argument of the ld. Sr. Advocate is that the said explanation only provides the procedure for computation and since this change is procedural in nature it will have a retrospective effect. Ld. Sr. Advocate also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erally understood as spread and would be the income of the Bank. The question was what should be considered as the turnover for purpose of VAT. It is in that context, the said court has held that the spread, the difference between the selling price and purchase price should be taken for the purpose of VAT. In the present case, the dispute is not relating to computation of turnover for purpose of charging a tax as there is no tax liability in case of traded goods. The question is how to apportion the credit of tax on the input service between the manufactured goods and the traded goods, whether we should take the turner of the manufactured goods and traded goods for apportioning the credit of the service tax on input services or some other c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t eligible for the entire credit availed on the common input services. Since the department rightly demanded the excess credit of Rs. 6,78,459/- which is in excess of 20% of the total service tax payable, the respondents paid the excess amount and they are not eligible to take re-credit in cenvat account nor they are eligible for refund. The adjudication order rejecting the refund of Rs. 6,78,459/- and the interest amount is upheld and the L.A.A. order allowing credit is liable to be set aside. 12. In view of the above discussions, the revenue appeal is partly allowed and the impugned order to the extent of allowing credit of excess credit on common input services is set aside and original adjudication order is restored. The revenue appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
